Williams Coal Co.

In the Matter of WILLIAMS COAL COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT No. 23 In the Matter Of SIXTH VEIN COAL CORPORATION and UNITED MINE WORKERS OF{ AMERICA, DISTRICT No. 23 In the Matter Of REINECKE COAL MINING COMPANY and UNITED MINE WORKERS or AMERICA, DISTRICT No. 23 In the Matter of GRAPEVINE COAL COMPANY and UNITED MINE WORKERS OF! AMERICA , DISTRICT No. 23 In the Matter of THE OPERATORS ASSOCIATION and UNITED MINE WORKERS OF AMERICA, DISTRICT No. 23 Cases Nos. 0-318 to C_522, inclusive, respectively .Decided February 23, 1939 Coal Mining Industry-Interference, Restraint, and Coercion : intimidation by deliberate shooting in vicinity of picketing employees ; employer ordered to cease interfering with right to peaceful picketing-Interference With Right to Bargain Collectively : initiation of negotiations with individual employees for purpose of modifying existing collective bargaining agreement where collec- tive bargaining representative exists-Employer-Association,Donuinated Labor Organization : domination of and interference with administration of and sup- port to labor organization established , maintained, and assisted prior to Act, by action , defined as unfair labor practices , of employer association of mine operators-Company-Dominated Locals of Dominated Parent Labor Organiza- tion: domination of and interference with formation and/or administration of locals of dominated parent labor organization by certain member operators at respective mines; support to locals and parent body ; employer association ordered to disestablish parent organization as representative of employees of certain member operators ; member operators ordered to disestablish parent organization and respective locals-Contract : agreements of employer associa- tion with dominated organization expiring during proceeding found part of systematic utilization by association of dominated organization to stifle self- organization and defeat collective bargaining by employees of member operators; association and certain member operators ordered to cease or refrain from giving effect to, making, renewing or extending any contract or arrangement to which dominated parent labor organization or any local thereof is a party, subject, in case of operators' association to rights of certain persons not parties to proceeding-Proviso Clause to Section 8 (3) of Act: execution or performance of closed-shop agreements as regards certain member operators not sanctioned by, where agreements made with labor organization not representing majority of employees of such operators in appropriate bargaining unit covered by closed-shop provision as applied to such employees , and/or with labor organization established , maintained, and assisted by unfair labor practices ; or 11 N. L R. B. No 49. 579 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with labor organization established , maintained , and assisted by action defined as unfair labor practices and by unfair labor practices ; labor organization "established , maintained or assisted by any action defined . . . as an unfair labor practice" defined-Appropriate Collective Bargaining Unit, Within Mean- ing of Proviso Clause : includes employees on strike as well as strikers who have returned to work-Check-off: not resulting from agreement with a labor organization and imposed by employer upon individual employees in further- ance of plan to foster company-dominated labor organizations held not within language of proviso relating to permissible conduct, and held to constitute maintenance and assistance within meaning of proviso ; certain member op- erators ordered to reimburse employees for dues and initiation fees checked off- Discrimination as to Terms and Conditions of Employment : requirement as condition of employment, of membership in dominated organizations, of authori- zation of check-off of dues to such organizations, and that employees bind them- selves to outstanding agreements between operators' association and dominated organization, and refrain from joining any other labor organization ; demotion and transfer to difficult position at coal loading-Discrimination as to Hire and Tenure of Employment : dismissal for union leadership and activity ; re- fusal to reinstate striking employees on application, for union activities and for engaging in strike ; counter offer of inferior position not substantially equivalent to former position held equal to discharge ; -discharges for disloyalty to dominated organizations and membership and activity in union ; charges of, dismissed as to two employees and as to strikers failing to make application for reinstatement-Discrimiination as to Hire and Tenure by Lock-out: following request for collective bargaining; requirement as condition to reopening mine that employees renew allegiance to dominated organization and acknowledge themselves bound by outstanding agreement with it-Discrimination as to Hire and Tenure by Refusal to Reinstate and Employ Striking Employees Except on Illegal Condition: requirement during strike, as condition of reinstatement and employment that strikers become members of dominated organizations, authorize check-off of dues to those organizations and bind themselves to out- standing agreements ; charges of, dismissed as to 30 employees laid off or dis- charged prior to strike-Collective Bargaining: refusals by two member operators to meet with representatives; one employer ordered to grant recog- nition to union ; where refusal found in 1935 but not determined on issue pre- sented as to 1937, employer ordered solely to cease refusing to recognize representative of majority in appropriate unit; charges of refusal to bargain, dismissed without prejudice as to two member operators where proof of majority withheld by Trial Examiner from examination by said operators- Units Appropriate for Collective Bargaining: mining employees; excluding foremen, bosses, and other supervisory employees, technical help, clerical force, and company executives-Representatives: proof of choice: in one case, signed petitions and agreed list of signatures from application cards; in another, testimony of union leader and testimony of union officer in charge of records, from records produced at hearing-Strikes: in case of one employer, refusal to bargain an effective cause of, and operative cause of prolongation ; in case of another, strike caused by employer breach of contract, held not unfair labor practice strike-Reinstatement and Placement on Preferential Lists Ordei ed: as to employees discharged or refused reinstatement during strikes, employees locked out, and unfair labor practice strikers ; reinstatement to former or sub- stantially equivalent positions, discharging, if necessary, pei sons hired after commencement of strike, in case of unfair labor practice strike, persons hired after lock-out, and persons hired after raising of illegal condition (luring strike, WILLIAMS COAL COMPANY ET AL. 581 in case of economic strike ; those employees for whom no employment available placed on preferential lists to be followed in future reinstatement to former or substantially equivalent positions ; strikebreakers discriminatorily discharged placed on preferential list-Back Pay: awarded : discharged employees, em- ployees refused reinstatement , and employees locked out ; Back Pay; awarded, where uncertainty as to striking employees who were refused reinstatement and as of what date: awarded to those strikers, in an amount equal to that which they would have earned from date of or after date of discriminatory condition to offer of reinstatement , who would have been reinstated had employer refrained from employing new persons after date of discrimination and had employer rein- stated, strikers in available positions. Mr. Herbert N. Shenlcin, for the Board. Gordon cC Gordon cPc Moore, by Mr. Neville Moore, of Madisonville, Ky., for the respondents. 11r. B. N. Gordon, of Madisonville, Ky., for the U. M. W. A. Waddill, Laffoon d Waddill, by Mr. Ruby Laffoon, of Madison- ville, Ky., for the I. M. U. Mr. Harry Cooper, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On May 15,1937, United Mine Workers of America, District No. 23, herein called the U. M. W. A., filed charges with the Regional Director for the Eleventh Region (Indianapolis, Indiana), charging that the Sixth Vein Coal Corporation, Madisonville, Kentucky, a respondent herein, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On May 24 the U. M. W. A. filed similar charges of unfair labor practices with the Regional Director against Williams Coal Company, Manningtcn, Kentucky, a respondent herein; on June 16, against Grapevine Coal Company, Madisonville, Kentucky, a respondent herein ; and on June 25, against Reinecke Coal Mining Company, Madisonville, Kentucky, a respondent herein. On August 9, 1937, the National Labor Relations Board, herein called the Board, pursuant to Article III, Section 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 1, as amended, herein called the Rules and Regulations, ordered that the cases thus instituted be consolidated for the purpose of hearing. Thereafter amended charges were filed in each case. Upon the amended charges, the Board, on August 28, 1937, by the Regional Director, duly issued its complaint against Sixth Vein Coal 164275-39-vol . xi--38 582 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Corporation, alleging that it had engaged ,in and was, engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. The Board likewise on that date, by the Regional Director, issued a complaint against each of the other above respondents, these com- plaints each alleging that the respondent therein named had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. On August 28, 1937, upon a charge duly filed shortly theretofore by the U. M. W. A., the Board by the Regional Director issued a complaint against The Operators' Association, Madisonville, Ken- tucky, alleging that The Operators' Association had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. On August 31, 1937, the Board, pursuant to Article III, Section 10 (c) (2), of the Rules and Regulations, ordered that the case of The Operators' Association be consolidated for the purpose of hearing with the other cases already consolidated for such pur- pose. On September 2, 1937, the Board, acting pursuant to Article II. Section 8, of the Rules and Regulations, duly notified The Operators' Association of the withdrawal of the complaint issued against it, and thereupon, upon the charges filed, duly issued an amended complaint alleging that the Association had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. Sixth Vein Coal Corporation, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and The Operators' Association are at times herein jointly referred to as the respondents. The complaint against Williams Coal Company alleged in sub- stance (1) that the respondent, on August 25, 1935, discharged Linn Proffitt, one of its employees and at all times since has refused to reinstate him because of his membership in and assistance to the U. M. W. A.; (2) that on or about September 23, 1935, a majority of the miners employed at the respondent's mine were members of the U. M. W. A. and had designated it as their collective bargaining representative ; that the respondent's mining employees, excluding foremen, bosses and other supervisory employees, technical help, the clerical force, and company executives, constitute a unit appro- priate for collective bargaining purposes; that on or about Septem- ber 23, 1935, the respondent refused to recognize or meet with the U. M. W. A. for collective bargaining purposes, or for any purpose; and that because of such refusal a strike was called at the mine; (3) that the respondent refused to put back to work 58 named WILLIAMS COAL COMPANY ET AL. 583 employees 1 who were members of the U. M. W. A. and who were out on said strike, and has at all times since refused employment to these employees because they joined and assisted the U. M. W. A. and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection ; (4) that the respondent on or about November 16, 1937, and there- after, instigated, fostered, dominated, and interfered with the forma- tion or administration of a labor organization at its mine, such labor organization being a local affiliated with Independent Miners' Union of West Kentucky, District No. 1, Madisonville, Kentucky, a labor organization, herein called the I. M. U., and contributed finan- cial or other support to the I. M. U.; (5) that the respondent some- time prior to November 16, 1936, became a member of The Operators' Association, an organization of coal-mine operators in the counties of Christian, Hopkins, Webster, and Union in the State of Kentucky, formed for the purpose, among other things, of dealing with labor problems; that at that time there existed a contract between The Operators' Association and the I. M. U. binding on all the members of each, which in effect required all employees of members of The Operators' Association to join the I. M. U.; that in accordance with this contract, the respondent required as a condition of employment at its mine that its employees become members of and pay dues to the I. M. U.; and that at the time when this condition of employment was imposed, the I. M. TT. did not represent a majority of such em- ployees and none of the respondent's employees was a member of the I. M. U.; (6) that the respondent, while engaged as described above, coerced its employees to join the I. M. U. and, during the summer of 1937, discharged 14 named employees 2 and has at all times since refused to employ them or any of them because they refused to relinquish their membership in the U. M. W. A. and refused to retain membership in and remain loyal to the I. M. U.; (7) that the re- spondent, on May 13, 1937, and thereafter, refused to bargain collec- tively with the U. M. W. A. which had been designated for that purpose by a majority of its employees in the unit appropriate for i The names of these employees are as follows • Ernest Aldridge, Lester Barnett, George Berry, Tillman Blades, Puddin Boyd, Lowery Boyd, Guy Brown, Arnie Causler, Albeit Childres, Orene Clark, Joe Cunningham, Wilford Davis, Oscar Denton, Chester Dulin, Realer Dunning, Gene Elgin , Ben Fletcher , Ernest Ford , Norris Ford, Arthur Franklin , Willie Franklin , Leonard Frazier , Ross Gamblm, Hershel Grant, Dewitt Hos- kins, Joseph Hight, Albert Holliday, Carlie Holmes, Earl Jackson , J. W Jackson , Raymond Jackson, Zeke Justic, Erin Lathom, J E Long, Raymond Lathom, Tommy Lee, Amon Majors, William Manson . Buck Martin , Enos Martin , Samuel McNeily, Abe Nlonx , Clifton Oates, Eugene Pendley, Floyd Penrod, Robert Penrod, Andrew Pool, Henry Poole, Walter Poole, Clarence Robison, Lindy Scroggins, Lawson Smith, Iley Sneed, Edgar Trotter, Charlie Whitfield, Owen Whitfield, George Wiggins, Gilbert Wiley. The names of these employees are as folloiis : U. S Bacon, William Crick, Oliver Flowers, Roy Holmes , Richard Hunt , Sam Mudd , Willard Mudd , James Sharber, Roy E. Sharber, Andrew Snorton, Claude Snorton, Flem Snorton, Jr ., Leslie Taylor, Arthur Wicks. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining purposes; and (8) that by the above and other similar acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint against Reinecke Coal Mining Company was amended at the hearing, as more particularly set forth hereinafter. The complaint as amended alleged in substance (1) that the re- spondent, on or about August 10, 1933, and thereafter, instigated, fostered, dominated, and interfered with the formation or adminis- tration of a local of the I. M. U. and contributed financial or other support to the I. M. U.; (2) that the respondent, sometime prior to August 10, 1933, became a member of The Operators' Association; that on that date The Operators' Association and the I. M. U. en- tered into a contract binding on all the members of each, which in effect required all employees of members of The Operators' Associa- tion to join the I. M. U.; that in accordance with this contract the respondent required as a condition of employment at its mine that its employees become members of and pay dues to the I. M. U.; that at the time when this condition of employment was imposed the I. M. U. did not represent a majority of such employees and none of the employees was a member of the I. M. U.; and that mem- bership in the I. M. U. has been a condition of employment by the respondent until the present time; (3) that the respondent, while engaged at its mine as described above, coerced its employees to join the I. M. U. and, in February and June 1937, discharged five named employees 3 and has at all times since refused to employ them because they joined and assisted the U. M. W. A. and refused to retain membership in and remain loyal to the I. M. U.; (4) that the respondent, on June 9, 1937, and thereafter, refused to bargain collectively with the U. M. W. A., which had been designated for that purpose by a majority of its employees in a unit appropriate for collective bargaining purposes; and (5) that by the above and other acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint against Grapevine Coal Company alleged in sub- stance (1) that on or about August 10, 1933, and thereafter, the respondent instigated, fostered, dominated, and interfered with the formation or administration of a local of the I. M. U. and con- tributed financial or other support to the I. M. U.; (2) that some- time prior to August 10, 1933, the respondent became a member of The Operators' Association; that on that date The Operators' Asso- ciation and the I. M. U. entered into a contract binding on the mem- I The names of these employees are as follows : John Bowles, William Hamilton, Henry L Hodge, Robert Jordan, and Jimmy Reeves Stone WILLIAMS COAL COMPANY ET AL. 585 hers of each which in effect required all employees of members of The Operators' Association-to join the I. M. U.; that in accordance with this contract the respondent-required as a condition of employ- ment that its employees become members of and pay dues to the I. M. U.; that this condition of employment was imposed at a time when the I. M. U. did not represent a majority of such employees and none of such employees was a member of the I. M. U.; that membership in -the- I. M. U. has been required as a condition of em- ployment by the respondent until May 25, 1937, when its mine closed down; (3) that the respondent on May 21, 1937, and there- after, refused to bargain collectively with the U. M. W. A., which had been designated for that purpose by a majority of the respond- ent's employees in a unit appropriate for the purposes of collective bargaining; (4) that the respondent coerced its employees to join the I. Al. U. and that, on May 25, 1937, after request was made of it by the U. M. W. A. to bargain collectively with that organization, it shut down its mine for the purpose of coercing and intimidating its employees in the exercise of the rights guaranteed by Section 7 of the Act. The complaint against Sixth Vein Coal Corporation was amended at and subsequent to the hearing as more particularly set forth hereinafter. The complaint as finally amended alleged in substance (1) that on October 8, 1935, the respondent entered into a written contract with the U. M. W. A. regarding wages, hours, and other conditions of employment, which was to remain in force until March 1, 1937; that on or about April 1, 1936, the respondent broke the contract by refusing to live up to its provisions and thereupon the respondent's employees went out on strike; that during the strike and on or about May 15, 1936, the respondent resumed the opera- tion of its mine ; that on or about June 11, 1936, and thereafter, and while the strike still was in progress, the respondent instigated, fos- tered, dominated, and interfered with the formation or administra- tion of a local of the I. M. U. at its mine and contributed financial or other support to the I. M. U.; (2) that on June 11, 1936, the respondent became a member of The Operators' Association ; that at that time there existed a contract between The Operators' Associa- tion and the I. M. U. binding on the members of each, which in effect required all employees of members of The Operators' Associa- tion to join the I. M. U.; that pursuant to the contract the respondent required as a condition of employment at its mine that employees become members of and pay dues to the I. M. U.; that at the time this condition of employment was imposed the I. M. U. did not represent a majority of the respondent's employees, including those who were then out on strike and none of such employees was a mem- ber of the I. M. U.; that the respondent coerced its employees to 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD join the I. M. U.; and that on or about June 11, 1936, and at all times thereafter, the respondent refused to employ anyone who did not join the I. M. U. and also refused to employ anyone who was a. member of the U. M. W. A., including employees who were then out on strike, as these employees well knew ; that some 99 named employees 4 refused to join the I. M. U. as thus required; that in and by requiring on or about June 11, 1936, and thereafter, membership in the I. M. U. as a condition of employment, as aforesaid, the re- spondent refused to employ such employees, some of whom were never taken back to work, and others of whom were refused employ- ment until various dates when economic circumstances compelled them to return, because of their membership in and assistance to, the U. M. W. A., their engaging in concerted activities for the pur- pose of collective bargaining and other mutual aid and protection, and their refusal to resign from the U. M. W. A. and join the I. M. U.; and (3) that by the above and other acts the respondent in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The amended complaint against The Operators' Association al- leged in substance that it was issued in connection with activities of the Association carried on in concert with the other respondents, Sixth Vein Coal Corporation, Grapevine Coal Company, Williams Coal Company, and Reinecke Coal Mining Company ; that The Operators' Association is a Kentucky corporation engaged in the business of assisting coal-mine operators in the counties of Christian, Hopkins, Webster, and Union, in the State of Kentucky, in the conduct and operation of their respective enterprises and especially in aiding them in handling their labor problems; that among the members of The Operators' Association are, and for some time have been the four other respondents ; that a principal reason for the formation of The Operators' Association was to consolidate the coal- 4 The complaint as amended contained 100 names . However, the name of William Franklin appears twice on the original complaint. The names of these employees are as follows : Luther Abbott, Marshall Adcox, Alvie Ayers, Jake Beard , Arthur Brown, Espy Brown , George Brown , Herschell Brown, Hubert Brown, W. H Brown , Henry Buntin, Ollie Bryant , Lewis Cain , Herman Capshaw , Bill Cavanaugh , Hershel Cullen , Ernest Cullen , Earl Day. Lawrence Davenport , Jack Dunning, Logan Dockrey , Thurman Dockrey, Joe Eaves , Ely Ewitts , W. H. Farmer, Ruby Ferguson , Bedie Fork, Jess Fork, Ashley Franklin , William Franklin , Lexie Felton, Frank Gamons, William Getlin , Owen Hatfield, Bert Hayes , Herschel] Hibbs, L M. Hicks, Wallace Hicks, Luther Hopper , Baxter Howton, Cecil 1-Iurt , Glen Hurt, Raymon Hurt, Claud Hyatt, James Hyatt, Harlon Jackson, Ruby Knight, E G. Lantaif, William Archie Lee, Earl Ligon , Perry Lyon , Gordon Maddox, Roy Majors, Lee Marshall , William Mathis, Ed McCulley , William McDonnell , B. D. Melton, Tom Menser, Walter Messemor, Elmo Miller, John Miller, Jess Mitchell, Monroe Mullins. Miles Mullins, J L. Neisz, Elmer Oglesby , Henry Paris, Floy Perry , Floyd Pierce, Edgar Price , Byrd Rawlins, Elgin Rawlins , Lem Rawlins, H. C. Rea, M. B. Rose, V. O. Scott, Aubrey Sisk , Carl Sisk, Chester Sisk, Delbert Sisk, J R. Sisk, Joe Sisk, Leonard Sisk, J E Steeley, Travis Tirey, Finis Todd, Sam Turner, William Turner , Dulin Tury, Howell Vinson, Joe Walker, Henry Wilkerson, Charlie Wyatt , Chester Wyatt, Garland Wyatt, Georgia Wyatt, Goebel Wyatt, Rustler Wyatt WILLIAMS COAL COMPANY ET AL. 587 mine operators in their anti-union policy which has been pursued to date; and that The Operators' Association in the summer of 1933 promoted the formation of the I. M. U. and since then has dominated and interfered with the administration of the I. M. U. and con- tributed financial and other support to it. The amended complaint further alleged that The Operators' Association has entered into various contractual relations with the I. M. U.; that the first of these contracts was executed on August 10, 1933, and has been renewed in substantially the same form until the present time; that under the terms of these contracts which were binding alike on the membership of The Operators' Association and the I. M. U., all regular employees of members of The Operators' Association were required to become members of the I. M. U.; that members of The Operators' Association compelled their employees under peril of loss of employment, to undergo a check-off of dues to the I. M. U.; that at no time when members of The Operators' Association required membership in the I. M. U. as a condition of employment, did the I. M. U. represent a majority of the employees of such member; that recognition of and contract with the I. M. U. preceded any actual employee memberships in the I. M. U.; that, as a direct consequence of the contracts between The Operators' Association and the I. M. U., the four respondents other than it at various times required as a condition of employ- ment that their employees join the I. M. U. and pay dues to that organization, and thereby coerced their employees to become mem- bers of the I. M. U.; that, as a further consequence, Reinecke Coal Mining Company, Sixth Vein Coal Corporation, and Williams Coal Company discharged or refused to employ certain employees because they would not become members of, or retain membership in and remain loyal to the I. M. U., and membership in the I. M. U. con- tinued to be a condition of employment at the Grapevine mine until May 25, 1937, when the mine was closed down following the receipt of a collective bargaining request from the U. M. W. A.; that the contract between The Operators' Association and the I. M. U. was the principal reason for the refusal of each of said four respondents to recognize or meet with the U. M. W. A. as the representative of a majority of its employees; that in respect to the above acts, and each of them, of The Operators' Association, The Operators' Asso- ciation has acted as agent and instrumentality of the other four re- spondents; and that by the above acts, when considered in connection with the acts of the other respondents, and by the continuance of such acts after July 5, 1935, the effective date of the Act, and by other similar acts, The Operators' Association interfered with, re- strained, and coerced the employees of its members, especially the employees of the four respondents named above, in the exercise of the rights guaranteed in Section 7 of the Act. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 7, 1937, a motion was filed in each case by the respec- tive respondent, asking that the complaint therein and, in the case of The Operators' Association, the amended complaint therein, be dismissed on the ground that the operations of such respondent were not part of nor did they constitute interstate commerce. The motion of The Operators' Association set forth as further ground that it was not an employer and had no employees. On September 7, 1937, each of the respondents likewise filed an answer to the respective. com- plaints, and in the case of The Operators' Association, to the amended complaint. The answer of the respondent, Reinecke Coal Mining Company, was amended at the hearing, and the answer of the re- spondent, Sixth Vein Coal Corporation was amended at and subse- quent to the hearing. The answers, as amended, of Reinecke Coal Mining Company and Sixth Vein Coal Corporation, and the answers of the other respondents, each denied the material allegations of the respective complaints, as amended, or the complaint, as the case might be. The answer, as amended, of the respondent, Reinecke Coal Mining Company, and the answer of the respondent, Grapevine Coal Company, admitted that the respective respondents became members of The Operators' Association prior to August 10, 1933, and that on that date the Association entered into a contract with the I. M. U. binding on all members of the Association and on all mem- bers of the I. M. U. which in effect required all employees of mem- bers of the Association to join the I. M. U. The answer of the re- spondent, The Operators' Association, to the amended complaint against that respondent admitted that under the terms of the contract of August 10, 1933, and subsequent contracts which were binding alike on the membership of the Association and the I. M. U., all regular employees of members of the Association had to become members of the I. M. U. On September 8, 1937, the I. M. U. filed with the Regional Director a motion for leave to intervene and to file an answer in each of the cases, which was granted. On September 11, 1937, the I. M. U. filed such answers, in effect denying the allega- tions of the complaint, and in the case of The Operators' Association, the amended complaint, with respect to itself. Pursuant to notice a hearing was held in Madisonville, Kentucky, from September 13 to 22, 1937, inclusive, before Tilford E. Dudley, the Trial Examiner duly designated by the Board. The Board, the respondents, the U. M. W. A., and the I. M. U. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing upon the issues was afforded all parties. At the com- mencement of the bearing the parties stipulated for the record that all pleadings and notices concerning the hearing had been duly served upon the respondents, the I. M. U., and the U. M. W. A. The Trial WILLIAMS COAL COMPANY ET AL. 589 Examiner denied the several motions to dismiss the complaints above mentioned-, The Board hereby affirms that ruling.' At the conclusion of the hearing counsel for the Board moved that the complaint against Reinecke Coal Mining Company be amended to allege that the respondent, on February 15, 1937, discharged John Bowles because of his membership in and activity in behalf of the U. M. W. A. The motion was granted over objection. We find no prejudicial error in this ruling of the Trial Examiner and hereby affirm the same. The respondent raised no objection at the time Bowles testified concerning his discharge, and it was afforded full opportunity to and did cross-examine him. It also presented evi- dence on the matter by way of defense. Counsel for the Board like- wise moved that the complaint against the respondent, Sixth Vein Coal Corporation, be amended by adding to paragraph 10 thereof, to the list of employees therein named as having been refused em- ployment, as more particularly set forth above, the names of nine other employees.6 The motion was granted over that respondent's objection. We find no prejudicial error in this ruling of the Trial Examiner and the ruling is hereby affirmed. This respondent did not object when any of the nine employees testified, and was afforded full opportunity to cross-examine them. As indicated below, the issues involved in regard to these employees are identical with the issues involving the other employees originally named in the complaint. The Trial Examiner made various rulings on other motions of the parties and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. These rulings are likewise hereby affirmed. On or about December 8, 1937, the Trial Examiner issued an Inter- mediate Report in the case of Grapevine Coal Company, a copy of which was duly served upon the respondent in that case, upon the U. M. W. A., and upon the I. M. U., in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act. He did not find that the respondent had engaged in any unfair labor practices within the meaning of Section 8 (3) of the Act. He recommended that the respondent cease and desist from its unfair labor practices and take certain affirmative action to remedy the situation brought about by such practices. Santa Cruz Fruit Packing Company v . National Labor Relations Board, 303 U. S 453; Clover Fork Coal Company v. National Labor Relations Board, 97 F. (2d) 331 (C. C A. 6th). 6 The names of these employees are as follows : Luther Abbott, Ruby Ferguson, William Gatlin , Harlon Jackson , Walter Messemor, Byid Rawlins , Henry Paus, Chester Sisk, William Turner. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about December 10, 1937, the Trial Examiner issued an Inter- mediate Report in the case of The Operators' Association, a copy of which was duly served upon the respondent in that case, upon the U. M. W. A., and upon the I. M. U., in which he found that The Operators' Association had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act, and recommended that it cease and desist from its unfair labor practices, withdraw recognition from the I. M. U. as the representative of employees of its members and completely disestablish it as such representative, and take certain other affirmative remedial action. On or about December 11, 1937, the Trial Examiner issued an Inter- mediate Report in the case of Williams Coal Company and an Inter- mediate Report in that of Reinecke Coal Mining Company, copies of which were duly served upon the respective respondents in those cases, upon the U. M. W. A., and upon the L. M. U., in which he found that each of these respondents 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 Act. He did not find that either of these respondents had engaged in any unfair labor practices within the meaning of Section 8 (5) of the Act. In the Williams Coal Com- pany case, he found that the evidence did not show a discrimination in the failure or refusal of the respondent to reinstate the employees who went on strike in 1935, and recommended that the complaint be dismissed with respect to Flem Snorton, Jr., and Roy E. Sharber, two of the employees alleged to have been discriminatorily discharged in 1937. In both cases, he recommended that the respondent cease and desist from its unfair labor practices found, and take certain affirma- tive action. On or about December 11, the Trial Examiner issued an Inter- mediate Report in the case of Sixth Vein Coal Corporation, copies of which were duly served upon the respondent in that case, upon the U. M. W. A., and upon the I. M. U., in which he found that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. He did not find that the respondent had engaged or was engaging in any unfair labor practices within the meaning of Section 8 (3) of the Act. He recom- mended that the respondent cease and desist from its unfair labor practices and likewise take certain action to remedy the situation which its practices had brought about. Thereafter, the respondent, the I. M. U., and the U. M. W. A. each filed exceptions to the Intermediate, Report in the Williams Coal Company case; and each of the respective respondents and the I. M. U. filed exceptions in the remaining cases. The Board has con- WILLIAMS COAL COMPANY ET AL. 591 sidered all of the exceptions filed and, in so far as they are incon- sistent with the findings, conclusions, and order set forth below, finds no merit in them. On May 9, 1938, the Board advised the respondents, the I. M. U., and the U. M. W. A., of their privilege, within a period of 10 days from receipt of such notice, to apply for oral argument before the Board and for leave to file briefs. On May 14 the respondents and the I. M. U. made such application. On May 27, 1938, the Board issued in the case of Sixth Vein Coal Corporation its amendment to the complaint in that case, as amended therein, for the purpose of conforming in certain respects the allegations of said complaint, as amended, to the proof. A copy of the amendment was duly served upon the respondents, upon the I. M. U., and upon the U. M. W. A.; and the parties were given leave to file an answer to the complaint, as finally amended, and to request a hearing on the same within 5 days. On June 1 Sixth Vein Coal Corporation filed its motion objecting to the filing of said amend- ment to the complaint, as amended, and moving the Board to strike from the record said amendment, and also filed an amendment to its answer denying the allegations of the complaint, as finally amended. On June 3, 1938, U. M. W. A. filed in said case a motion for extension of the recommendations of the Trial Examiner's Inter- mediate Report, and for additional findings, to the effect that said respondent be required to make whole certain named employees for any loss of wages which they suffered by virtue of the respondent's unfair labor practices. On June 15, 1938, the Board issued in said case and served upon the respondent, the I. M. U., and the U. M. W. A., its order directing the filing instanter of the respondent's motion to strike the amendment to the complaint, as finally amended; and denying said motion. Pursuant to notice, a hearing for the purpose of oral argument was held on July 7, 1938, before the Board in Washington, D. C. Neither the respondents nor the I. M. U. appeared. The U. M. W. A. ap- peared and participated in the hearing. No briefs were filed. Upon the entire record in this consolidated proceeding, the Board makes the following : FINDINGS OF FACT I. THE BUSINESSES OF THE RESPONDENTS Williams Coal Company, a Delaware corporation, is engaged in the business of mining and selling coal. It owns and operates a mine at Mannington, Hopkins County, Kentucky, where its principal place of business is located. All of the coal produced is sold to the Nash- ville Coal Company, a coal brokerage concern, which takes title at 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the,mine. The coal is placed in railroad cars of the Louisville & Nashville Railroad Company, stationed at the mine, and shipped directly to customers of the Nashville Coal Company. In the year 1936, production amounted to 364,574 tons. About 22 per cent thereof was shipped to points in Illinois; 18.19 per cent in Tennessee; 0.07 per cent in Iowa; and 9.68 per cent in other States. The remainder was delivered intrastate, a substantial portion of which being sold to the Louisville and Nashville Railroad, an interstate carrier. In the first 6 months of 1937, production was 118,252 tons of which 29.74 per cent was shipped to Illinois; 16 per cent to Tennessee; 0.56 per cent to Iowa; and 8.03 per cent to other States. Thus over 54 per cent was shipped during this period to points outside the State of Kentucky. Approximately 75 per cent of the equipment and supplies used at the mine is purchased in and brought to the mine from States other than Kentucky. During the first 6 months of 1937, the respondent em- ployed approximately 295 employees and operated about 165 days. Reinecke Coal Mining Company, a Delaware corporation, owns and operates a mine at Madisonville, Kentucky, its principal place of business. The coal is sold by and through a coal broker, f. o. b. the mine. It is loaded into railroad cars of the Louisville and Nashville Railroad stationed adjacent to the mine. In the year 1936, produc- tion amounted to 203,832 tons, of which over 69 per cent was shipped outside Kentucky to the following States : Alabama, Arkansas, Illi- nois, Indiana, Iowa, Louisiana, Minnesota, Mississippi, Missouri, Tennessee, and Wisconsin. During the first 6 months of the year 1937, production amounted to 104,388 tons, over 75 per cent of which was shipped to points in the following States : Alabama, Illinois, Indiana, Iowa, Minnesota, Mississippi, Missouri, Tennessee, and Wis- consin. The equipment and supplies used at the mine are purchased principally in Kentucky, Missouri, Illinois, and Indiana. During the first 8 months of 1937, the respondent employed an average of 240 employees. Grapevine Coal Company is a Delaware corporation. Its mine is located near Madisonville, Kentucky. It also sells its coal through a coal broker f. o. b. the mine. Coal is shipped directly from the mine in cars of the Illinois Central Railroad Company and the Louisville and Nashville Railroad Company. In 1936, production amounted to 167,227 tons, over 65 per cent of which was shipped outside Kentucky to the following States : Alabama, Arkansas, Illi- nois, Iowa, Indiana, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, South Dakota, Tennessee, and Wisconsin. In the first 6 months of 1937, over 82 per cent of a production amounting to 86,606.50 tons was distributed among the States last named, except Missouri and Nebraska. On April 1, 1937, 200 persons were employed in the mine. WILLIAMS COAL COMPANY ET AL. 593 Sixth Vein Coal Corporation, a Delaware corporation, owns and operates a mine in Madisonville, Kentucky. All coal produced is sold to Memphis Coal Company, a coal brokerage concern, and shipped directly to its purchasers in cars of the Illinois Central Rail- road. In 1936, 102,400 toils were produced, and in the first 6 months of 1937, 39,900. In each of these periods approximately 80 per cent of the coal was shipped to points in Illinois, Indiana, Iowa, Wiscon- sin, Minnesota, Tennessee, and the South. About 50 per cent of the supplies used at the mine is purchased in States other than Ken- tucky. During the first 9 months of 1937, the respondent employed- an average of approximately 135 employees. The Operators' Association is a non-profit, non-stock membership association, organized as a body corporate and politic under the laws of Kentucky.? Its principal place of business is Madisonville, Ken- tucky. Membership in the Association is limited to owners and op- erators of coal mines located in the counties of Christian, Hopkins, Webster, and Union, Kentucky. At the present time it has 19 mem- bers, including the other respondents herein. The present treasurer of the Association is one Overall, general manager of the respondent, Reinecke Coal Mining Company. One Hayes, general manager of the respondent, Grapevine Coal Company, is a director. The Op- erators' Association is engaged, among other things, in assisting its members in the conduct of their respective businesses, especially in the handling-of their labor relations. Since August 10, 1933, acting for itself and as agent for and in the interest of its members, it has entered into successive contracts with the I. M. U., more particularly described below, regarding wages, hours, and working conditions of its members' employees.8 As found hereinafter, The Operators' As- sociation is an employer, within the meaning of the Act.,, II. THE ORGANIZATIONS INVOLVED United Mine Workers of America, District No. 23, is a labor or- ganization admitting to membership persons employed in the mining industry in the western part of Kentucky, except foremen, assist- ant foremen, bosses, fire bosses, electricians and assistants, coal in- spectors or weighbosses, watchmen, stablemen, teamsters, truck drivers, railroad track workers or others engaged in new construction or extensive repair work, clerks, and persons employed in a technical, 7 Carroll's Kentucky Statutes Ann (1936) § 879. 8 The contracts provide "That the parties [ The Operators' Association and the I. âI. U.] have reached an agreement to be binding on their membeiship as to wage scales and work- ing conditions in the Counties of Union, Webster , Hopkins and Christian , in the State of Kentucky, and do hereby declare their mutual agreement to the following terms and con- ditions which the parties and their membership mutually undertake to preserve for their mutual benefit . . . i See Section III F 1, infra 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory, or executive capacity. United Mine Workers of Amer- ica, District No. 23, is affiliated with the United Mine Workers of America, an international labor organization, which in turn is affil- iated with the Committee for Industrial Organization. United Mine Workers of America, District No. 23, comprises various local labor organizations, herein called locals, including locals at the respective mines of Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corporation. Independent Miners' Union of Western Kentucky, District No. 1, is a labor organization which admits to membership persons em- ployed in and around coal mines in Hopkins County and adjacent counties, Kentucky. It has chartered local labor organizations, like- wise herein called locals, at the mines of the aforesaid respondents. III. THE UNFAIR LABOR PRACTICES A. Backgrownd In June 1933, the U. M. W. A., spurred by the enactment of the Congress of the National Industrial Recovery Act,10 extended its organizational activities among the coal mines in western Kentucky. The campaign was particularly successful in Muhlenberg and Ohio Counties,"' Kentucky, where large numbers of mining employees joined the U. M. W. A. and collective bargaining agreements pro- viding for employee wages and other working conditions were there- after entered into by the coal-mine operators with the U. M. W. A. as representative of such employees. About the same time in June 1933,12 The Operators' Association, acting through its president and certain members, sought to persuade one Jackson, a real-estate man, formerly a leader in the affairs of the U. M. W. A., to form an independent labor organization among employees working in the coal mines of western Kentucky. The Association informed Jackson that it "didn't want to have any out- side interference . . . with the U. M. W. A.," offered him a loan of $1,000 for organizational purposes, and suggested certain clauses that the constitution of the proposed union might contain. Jack- son did not favor the plan; he "could not get the consent of my mind to go through with this organization," for he would want "a 10 This statute went into effect June 16, 1933. Section 7 (a) thereof secured to em- ployees the right to self-organization and to bargain collectively through representatives of their own choosing. "These counties lie adjacent to Christian, Hopkins, Webster, and Union counties, Kentucky. 12While actions of the respondent occurring before the effective date of the Act do not constitute unfair labor practices , they are important, nevertheless, as lending color to and explaining the respondents ' acts after that date. See National Labor Relations Board v. Pacific Greyhound Lines, Inc, 91 F. (2d) 458, 459 (C. C. A 9th), 303 U. S. 272; National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc, 303 U. S. 261. WILLIAMS COAL COMPANY ET AL . 595 constitution by the men, I want the men to elect me as their repre- sentative." Shortly after this abortive attempt the president of The Operators' Association had a conversation with one Robert Nance, whom the president sometime previously had employed as a mine foreman, about organizing an independent labor organization in the western Kentucky coal fields. Nance testified that many people in years preceding that time had discussed such a project with him, among others, miners and a banker who operated a local coal mine. How- ever, the record shows that nothing ever was undertaken by Nance in that direction until after his conversation with the president of The Operators' Association. On July 1, 1933, the president and members of The Operators' Association conferred with Nance at a meeting of the Association arranged by the president. Nance said to the operators that "the coal industry in Western Kentucky could only be saved by an inde- pendent organization . . . that the national policy of the United Mine Workers was calculated to seriously injure, if not destroy, the coal industry in Western Kentucky . . .," that he "would not under- take it [the organization of an independent union] unless I was as- sured that I could have their cooperation to the extent that I could go in on their property, take their employees, and use them as or- ganizers to organize the men in the mines." The Operators' Asso- ciation agreed to give Nance such cooperation. Thereupon, as a result of this meeting, Nance proceeded to organize the I. M. U. The members of The Operators' Association were not entirely satisfied with having Nance lead the I. M. U. Later in the sum- mer of 1933, after the I. M. U. was formed, one Trader, a member of the Association and a stockholder in other coal companies which were also members of the Association, approached one Yarborough, a farmer and miner, and, after informing him that "we are trying to organize an Independent Miners' Union here and . . . we have got Mr. Nance at the head of it," stated that the miners had no con- fidence in Nance and that "if you will accept the place we will give you $300 a month and make you president of the I. M. U." Yarborough rejected the offer, saying that he wanted to retain the confidence which the miners in western Kentucky had placed in him. At the hearing Trader denied having had the above con- versation with Yarborough but admitted visiting him in the fall of that year. Trader's testimony as a whole is evasive, and under all the circumstances we are unable to give credence to his denial. On July 1, 1933, Nance and four other incorporators organized the I. M. U. as a non-profit, non-stock "labor union association," ad- mitting to membership persons employed in and around coal mines of Hopkins County, Kentucky, and adjacent counties in Kentucky. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter in July a certain petition, in words substantially as follows, was circulated among employees at the mines of members of The Operators' Association and elsewhere, including the mines of some of the respondent operators: We the undersigned employees . .. hereby pledge our alle- giance to the Independent Miners' Union and request J. A. Johnson 13 and R. M. Nance to secure a joint conference with the coal operators and a scale committee selected by the men em- ployed at the mines for the purpose of securing a contract cov- ering wages and working conditions at the various mines. In some instances the circulation of these petitions and the secur- ing of employee signatures to them was initiated by or accomplished through the active assistance of executives and managerial employees. Locals of the I. M. U. were then established at various mines, with two such locals being organized prior to August 10, 1933, at the mines of the Reinecke Coal Mining Company and Grapevine Coal Company, respectively, both members of The Operators' Association at that time. On August 10, 1933, The Operators' Association, acting for itself and as agent for and in the interest of its members, entered into a written agreement with the I. M. U., effective as of August 1, 1933. concerning "wage scales and working conditions" of employees at the mines of members of The Operators' Association in the counties of Union, Webster, Hopkins, and Christian, Kentucky. The agree- ment was expressly made binding on the respective memberships of both parties and provided that it constituted "the only Agreement between the men employed by the Operators and the Operators' Asso- ciation and there shall be no demands made locally that will con- flict with this Agreement." Both the I. M. U. and The Operators' Association construed and considered this contract as providing for a closed shop.14 The agreement also contained a provision, permissive is Attorney for I M U at that time. 14 Nance testified as follows : A. . . . It [agreement of August 10, 1938] was supposed to be a closed shop con- tract, with certain exceptions Q. So this provision, which is in the preamble of the Contract, saying: " Witness- eth, that the parties have reached an agreement to be binding on their membership as to wage scales , working conditions ," and so fortli ,, that is the provision that made it binding on all members of the Operators Association? A That is what we assumed. Q. To have only I M U. men in their mines? A. That is 1w hat we assumed As to the "exceptions" referred to by Nance, see Section III E 3 , infra. The answers filed by the respondents , The Operators' Association , Reinecke Coal Mining Company and Grapevine Coal Company all acquiesced in the allegation of the respective complaints against them that the agreement of August 10, 1933, provided for a closed shop The answer of the Association also admitted that the subsequent agreements provided for a closed shop See also Section III B 4, infra WILLIAMS COAL COMPANY ET AL. 597 in character, authorizing each operator to make individual contracts with its employees providing for a check-off of dues to the I. M. U. and to the particular local of the I. M. U. at the respective operator's mine.15 At the time the agreement was executed the I. M. U. did not represent a majority of the employees at the mines of Reinecke Coal Mining Company or Grapevine Coal Company. Pursuant to the agreement the operators of both these mines required all of their employees to join the I. M. U. in order to retain their jobs. They also required as a condition of employment that the employees authorize a check-off of dues to the I. M. U. We are convinced from what has been set forth above, in the light of the entire record, that The Operators' Association, acting for itself, and as agent for and in the interest of its members, promoted, spon- sored, and supported the formation of the I. M. U. in order to thwart and defeat the U. M. W. A. in its unionization of employees in the coal mines of western Kentucky. It is clear that the members of The Operators' Association desired and proposed that their employees join and designate as bargaining representative a labor organization con- genial to the will of the mine operators in that field, and that to that end, acting through The Operators' Association, they enlisted Nance to organize the I. M. U. We find it impossible to believe in view of the circumstances surrounding the formation of the I. M. U. and events which-subsequently developed that the proposal for founding that organization- originated with Nance or that its being organized is attributable to him independently. The agreement of August 10, 1933, was, by its terms, to continue in force until July 1, 1934, and thereafter, until a further agreement was reached between the parties altering or modifying the first agreement. It also was provided that the parties would meet in April 1934 to negotiate a further agreement to become effective upon the expiration of the agreement of August 10. On April 1, 1934, The Operators' Association, again acting for itself and as agent for its members, and the I. M. U. entered into a second agreement, as ;contemplated by the agreement of August 10, 1933, coiifa-iffiiiig substantially the same provisions as their preceding agree- ment, except for certain changes in wage rates and hours of employ- ment. This second contract was renewed on June 20, 1935, for a period terminating July 1, 1937.18 15 For terms of this individual contract see Section III B 4, infra 16 A third agreement was entered into November 14, 1936, effective November 16, con- taining substantially the same provisions as the preceding contracts , with changes in wage rates and other changes , and by its terms extending to July 1, 1938 . The parties further agreed to meet in April 1938, to negotiate a new agreement . The agreement of November 16 provided that "This is a closed shop Agreement between the parties. Members of the Independent Miners Union only shall be employed in the mines operating under this con- tract, subject to specific exceptions herein set out." The agreement was amended to provide for change in wage rates on April 26, 1937. 164275-39-vol xi-39 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As a result of the favored position accorded the I. M. U. by members of The Operators' Association operating mines in Christian, Hopkins, Webster, and Union counties, Kentucky, the U. M. W. A. was unsuc- cessful in its organizing activities conducted in those counties. Even in coal mines where the U. M. W. A. claimed as members a majority of the employees, it failed to secure a collective bargaining contract with the mine operators. The U. M. W. A. also discovered thereafter that because of the lower scale of wages provided for in the I. M. U. contract, the operators in Muhlenberg and Ohio counties refused to enter into agreements with the U. M. W. A. providing for wages at the higher national level. B. Williams Coal Company-The unfair labor practices 1. The discharge of Proffitt Linn Proffitt was discharged by the respondent, Williams Coal Company, on August 25, 1935. Three months earlier he had been elected financial secretary of a local of the U. M. W. A. established among employees at the mine. Proffitt was an active union member. In June 1934 he served on a committee of the local which attempted, without success, to obtain from the respondent recognition for the U. M. W. A. as collective bargaining representative of the respond- ent's mining employees. - Shortly after his election as a union officer Proffitt was demoted from his job as a mule driver to loading coal at a difficult location in the mine. He was told by his foreman that the reason for the demotion was that his driving, was unsatisfactory. No explanation of what was meant by this was given him. Proffitt had been em- ployed as a driver by the respondent for 3 years, and during that time had received no complaints about his work. However, the drivers who succeeded Proffitt at his job did not prove satisfactory and he was returned to mule, driving, where he was engaged when the discharge occurred. At the time of his discharge Proffitt inquired of the foreman who, dismissed him what the reason therefor was. The foreman replied that he "could not say," that Proffitt would have to see the superin- tendent of the mine, one Snarr, about it. Proffitt went to Snarr who said that Proffitt "was riding around with the district officials too much and if [Proffitt] was able to ride around with the district - officials and associate with them [Proffitt] was able to work, to do any kind of work that he was supposed to have for me." By district officials Snarr referred to the president of the U. M. W. A., Morgan, and its secretary, Loveless. „ 4, The respondent avers in its answer that it "discharged Proffitt for the reason that he "wilfully and without reason or excuse repeatedly WILLIAMS COAL COMPANY ET AL. 599 absented himself from work." There is no evidence in support of this allegation. Proffitt testified, and we believe, that there was no irregularity in his work, as averred. We have no doubt that the true reason for the discharge was Proffitt's union leadership and activity. As set forth below, the re- spondent, about the time of the discharge, showed its hostility toward the U. Al. W. A. local by refusing to accord the U. M. W. A. the recognition as collective bargaining representative of the respondent's employees, to which it was entitled under the Act. Proffitt held a position of consequence in the local. His demotion shortly after his election to office in the union was a warning of the respondent's atti- tude concerning his union activities.17 We are satisfied that his assignment to coal loading was not caused by unsatisfactory work. Proffitt's persistence in his union activity as evidenced by his asso- ciation with the U. M. W. A. officials in their organizational work finally resulted in his discharge. That Snarr in stating the reason for the dismissal described it as "riding around with the district officials too much" made the discriminatory character of the dismissal nonetheless clear. We find that by discharging Linn, Proffitt on August 25, 1935, the respondent, Williams Coal Company, discriminated in regard to hire and tenure of employment, thereby discouraging membership in a labor organization; that in and by said discharge said respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the, time of his discharge Proffitt was earning an average weekly wage of $20. Since then he has been employed temporarily by other coal companies, and at the time of the hearing was employed on W. P. A. He has earned approximately $400 since the discharge. 2. The refusal to bargain collectively in 1935 and the 1935 strike a. The appropriate unit The complaint against the respondent alleged and its answer ad- mitted, that all of the respondent's mining employees, excluding fore- men, bosses, and other supervisory employees, technical help, the clerical force, and company executives, constitute a unit appropriate for the purposes of collective bargaining. We find that at all times material herein the mining employees of the respondent, excluding foremen, bosses, and other supervisory em ployees, technical help, clerical force, and company executives, con- "Cf. Matter of Clover Fork Coal Company and District 19, United Mine Workers of America, 4 N. L. R. B. 202, 221, 227; Matter of Harlan Fuel Company and United Mine Workers of America, District 19, 8 N . L. R. B. 25. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stituted and constitute a unit appropriate for purposes of collective bargaining, and that said unit insures and will insure to the employees the full benefit of their right to self-organization and to collective bargaining, and otherwise will effectuate the policies of the Act. b. Representation by the U. M. W. A. in 1935 of a majority in the appropriate unit One Boyd,18 a leader of the U. M. W. A. local at the respondent's mine in 1934 and 1935, testified that in September 1935 about 270 of the employees working in the respondent's mine, that is, a little over two-thirds of the employees in the above appropriate unit 19 were mem- bers of the U. M. W. A. and the local.20 The secretary-treasurer of the U. M. W. A. during 1935, and ever since, in charge of its books and records testified from certain records of exoneration 21 produced at the hearing that the local had 297 members among the respondent's em- ployees on September 22, 1935, and between 295 and 297 during the last 6 months of the year. Inasmuch as membership in the U. M. W. A. is confined within the group of employees constituting the appropriate collective bargaining unit found above, all members of the U. M. W. A. were and are in that unit. The respondent introduced no evidence on the issue of majority representation by the U. M. W. A. of employees within the appro- priate unit during the period above considered, nor did it raise any objection to the evidence which was introduced. At the various times in 1935 after July 5 mentioned below, when the respondent refused to bargain collectively with the U. M. W. A., the respondent did not challenge the fact of the U. M. W. A.'s representation of such majority. Under all the circumstances we are satisfied that the U. M. W. A. was the bargaining representative of a majority 19 Boyd, an employee of the respondent in 1934 and 1935, was the president of the local in 1934 and again for a time in 1935 during the strike, mentioned below, which com- menced on September 23, 1935. He was in a position to know about membership in the U M. W. A. among the respondent's employees prior to the strike not only because-of his leadership , but his service on the committees of the U. M W. A. which during the period of 1934 and 1935 attempted , as hereinafter set forth, to secure collective bargaining from the respondent, in connection with which negotiations a cut-off sheet containing the names of U. M. W. A members employed by the respondent was prepared and presented by the conimittees .,to thg rgspondent to establish the. authority of the U. M. W. A. to represent the employees. ' 19 Although the witness in his testimony specifically excluded only foremen, supervisors, and clerical help from the unit, it is clear from his testimony that he intended to exclude technical help and company executives, not eligible to membership in the U. M W. A 20 There was some testimony by Proffitt, who was financial secretary of the local in June 1935 and thereafter, estimating that the U. M. W. A local then had 217 members among about 250 employees in the mine. "Exoneration is a form of dispensation allowed by the U. M W A. to members of a local where an organization campaign is in progress , permitting members to retain mem- bership without paying dues during the course of the campaign . Evidently organization is considered in progress until a contract is obtained from the employer No contract then existed between the U. M. W. A. and the respondent. WILLIAMS COAL COMPANY ET AL. 601 of the respondent's employees in the appropriate unit in July and thereafter in 1935. We find that in July and thereafter in 1935 the U. M. W. A. was the duly designated representative of a majority of the employees in the appropriate unit for purposes of collective bargaining and, that pursuant to Section 9 (a) of the Act was the exclusive repre- sentative of all the employees in such unit for the purposes of collective bargaining. c. The refusal to bargain On at least two occasions prior to the effective date of the Act 22 the local of the U. M. W. A. at the respondent's mine requested the respondent to recognize the U. M. W. A. as the representative of its members at the mine for collective bargaining purposes and to check off their dues. The first request was made shortly after the enact- ment of the National Industrial Recovery Act,13 at a time when the local had enrolled as members and represented substantially all of the persons employed at the mine. Another request was made in June 1934 when the local likewise represented a majority. However, the respondent, through its superintendent, Snarr'24 refused these requests. Although the U. M. W. A. through its local claimed to represent a majority throughout this period, the respondent at no time 25 accorded it recognition as a collective bargaining representa- tive of the employees, or even recognition as representative of the employees who were members. In August 1935, after the Act became effective, a committee of the local approached the mine superintendent, Snarr, regarding the respondent's bargaining collectively with the U. M. W. A. in behalf of the employees who were members of the local at its mine. Snarr promised to discuss the matter if the local secured the president of the U. M. W. A., one Morgan, to speak for them. At that time there was a small picket line 'outside the mine. The local informed Morgan of Snarr's proposal, and Morgan then communicated with Snarr. Snarr told Morgan that the respondent "had nothing - to say," that it "did not even want to talk" with Morgan. 21 See footnote 12 as to relevancy of these occurrences. "See footnote 10 24 Snarr had complete authority throughout the period under review in regard to collec- tive bargaining In a letter dated June 18, 1934, addressed to a committee of the local in behalf of the respondent, there was stated, "would advise that Mr. Kenneth Snarr has full authority and would suggest that you simply see him any day that you desire . . . I will be glad to be there if it happens to be convenient but it is no way necessary, as Mr. Snarr has full authority in every respect." 25 The president of the local in 1934 testified as follows : "Every time that we would send a cut-off sheet or send to him [ Snarr] asking him to recognize the union , he would fire a few men . . For discharge as a refusal to bargain collectively under the Act, see Matter of Louisville Refining Company and International Association Oil Field, Gas Well and Refinery Workers of America, 4 N. L. R. B 844, 860. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subsequently, in the latter part of August or the first part of September, a committee of the local composed of its financial secre- tary and two others again requested Snarr, acting in behalf of the respondent, to recognize the U. M. W. A. and its local as the bargain- ing representative of the members at the mine, and to check off their dues to the U. M. W. A. The respondent refused; Snarr stated that the respondent could not do so. It is clear, and what has been set forth above shows, that in the period subsequent to the enactment of the Act, the respondent per- sisted unequivocally in the position which it had assumed and main- tained prior to the Act of refusing to meet or treat with the U. M. W. A. and its local as bargaining representative of employees at the mine who were members of the U. M. W. A.26 In August and again in that month or in early September 1935 it denied recognition to and refused to bargain collectively with the U. M. W. A. and its local although a majority of the employees in the unit we have found appropriate had designated the U. M. W. A. as their representative for such purpose, and the U. M. W. A., by virtue of such designation, constituted the exclusive bargaining representative of all the em- ployees in said unit. It at no time questioned the U. M. W. A.'s majority nor did it raise any issue with respect to the appropriate unit. We find that the respondent, Williams Coal Company, during August and September 1935, and thereafter, refused to bargain col- lectively with the U. M. W. A. and its local as the representative of its employees in respect to rates of pay, wages, hours of employment, and other conditions of employment, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights, guaranteed by Section 7 of the Act.27 Our order will make provision to remedy the refusals of the respondent thus to bargain collectively. 46 The fact that the U. M. W. A. sought recognition as representative of its members only, as we have found , would not relieve the respondent of its obligation under the Act to bargain collectively with the U. M. W. A. Matter of Louisville Refining Company and International Association Oil Field, Gas Well and Refinery Workers of America, 4 N L. R. B. 844 861 27 Matter of Clifford M. DeKay and International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 6119, 2 N. L R. B. 231; Matter of Elbe File and Binder Company, Inc. and Bookbinders, Manifold and Pamphlet Division, Local Union No. 119, International Brotherhood of Bookbinders , 2 N. L R. B. 906. In National Labor Relations Board v. Remington Rand, Inc., 94 F. ( 2d) 862, 868 (C. C. A. 2d), cert. den. 304 U. S . 576, the Circuit Court of Appeals said : The Board was certainly free to find that the respondent had been guilty of "unfair labor practices," for it obviously meant not to confer with the Joint Board after the meeting with Anderson on April 24th and 25th-Rand 's declarations alone would be enough ; he invited a test of the necessity of treating with the union at all, and con- sistently followed that course thereafter. The respondent answers that it had no official or conclusive information that the Joint Board was the duly accredited bar- gaining representative of the men . . . In the case at bar even though the respond- ent were in doubt as to the Joint Board's authority , that doubt did not excuse It; for it is quite plain that its position was not based upon anything of the sort, but upon its unwillingness to treat with "outside" representatives of its employees . . . WILLIAMS COAL C011IPANY ET AL. d. The strike 603 On September 23, 1935, after a deadlock in negotiations between the United Mine Workers of America, the international labor or- ganization, and coal-mine operators throughout the country over wages and other working conditions in the bituminous-coal industry, the United Mine Workers of America called a Nation-wide strike of all persons employed in bituminous-coal mines in the United States. We take notice that this strike was settled and terminated within 5 days, that at its conclusion a majority of some 400,000 employees re- sumed work, although in certain areas employees continued on strike because of local conditions.28 About 70 employees at the respondent's mine, all of them members of the U. M. W. A., went on strike on September 23. The strike was induced by the national strike call and by the refusals of the respondent, above mentioned, to bargain collectively with the U. M. W. A. The president of the U. M. W. A. testified that one of the "particular" reasons for the strike at the respondent's mine was that "we had continuously asked for collective bargaining at that mine and were continuously refused." The striking employees remained on strike after the national strike ended. On October 29, 1935, these employees, together with workers from mines in the adjacent counties of Muhlenberg and Ohio '29 formed a picket line, estimated to have consisted of from 500 to 1,500 persons, and proceeded to walk on a public road leading toward the respondent's mine. Their purpose was to engage in peaceful picketing at the mine to the end of persuading the respondent to increase wages and recognize the U. M. W. A.; also to induce their fellow workers in the mine to join their ranks. One witness testified, "The picket line went up on peaceful picketing to ask the company for a decent wage and to recognize the men's own choosing, and to ask the men out there with us to help get the contract." As the striking employees and other persons neared a private road turning off toward the mine, they were met by the mine superintendent, Snarr, and six company guards, armed with shotguns and a tear- gas gun. Snarr forthwith ordered all persons to stop. Upon some of the persons continuing in their walking a short distance further, Snarr promptly shot tear gas at them. Thereafter shotguns and 21 Monthly Labor Review, Volume 42, No. 1 (U. S. Department of Labor ), January 1936, p. 147. Coal Age, December 1935, p. 549. United Mine Workers Journal, December 1, 1935, p 8, and October 1, 1936, p. 6. Morgan, president of the U. M. W . A., testified that the national strike ended after the strike at the respondent 's mine terminated. He may have had in mind the continuance of the strike in certain other counties of western Kentucky. PO See Section III A , supra, as to the unionization by the U. M. W. A. of the mines in these counties. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD revolvers were fired, and three of the pickets, none of whom appears to have been a striking employee, were seriously injured. There is a conflict in the record as to whether anyone other than Snarr and the guards was armed with firearms, or whether, at the time the shooting began, any person had started walking on the private road leading to the mine. There is no showing that any of the respondent's striking employees were armed. The shooting re- sulted in a dispersal of the picket line. After October 29 no attempt was made to picket the respondent's mine. Sometime later, as stated below, requests for reinstatement were begun by a few of the striking employees. However, the re- spondent refused these requests. The other employees, with some exceptions, have not returned to work. We are satisfied that the respondent's refusal to bargain collec- tively with the U. M. W. A. not only was an effective cause of the strike of September 23, at the respondent's mine, as already set forth, but the operative reason for its prolongation after the na- tional strike terminated. There is neither showing nor convincing ground for belief that had the respondent discharged its duty under the Act and bargained collectively in good faith with the U. M. W. A., the 70 employees who went on strike would in any event have done so, or if they had, would have remained on strike after the national strike concluded.30 The effort of October 29 to establish a picket line shows that the striking employees then well understood that the respondent had not changed its position in the matter. We find that the strike of September 23 at the respondent's mine was both caused by and prolonged by the respondent's refusal to bargain collectively with the U. M. W. A. 3. Refusals and alleged refusal to reinstate striking employees Clifton Oates worked at the respondent's mine for 5 years. On September 23, 1935, he went on strike with the other of the re- spondent's employees. About a month after the October 29 occur- rence he returned to the mine to make application for reinstatement. He inquired of Snarr whether the respondent was "taking on any men." Snarr replied, "We don't want you fellows [striking em- ployees] on the company's premises, get off." Oates left and never returned to work. 301n National Labor Relations Boa,d v. Remington Rand, Inc, 94 F. (2d) 862, 872 (C C. A. 2d), cert. den 304 U. S. 576, the court said • "But since the refusal was at least one cause of the strike, and was a tort-a 'subtraction' it rested upon the tortfeasor to disentangle the consequences for which it was chargeable from those from which it was immune Since it cannot show that the negotiations , if undertaken , would have broken down, it cannot say that the loss of the men's jobs was due to a controversy which the act does not affect to regulate " See also Matter of McKaig-Hatch, Inc. and Amalgamated Association of I,on, Steel, and Tin Workers of Noith America, Local No. 1139, 10 N. L. R B. 33. WILLIAMS COAL COMPANY ET AL . 605 Robert Penrod and Ernest Ford, two of the striking employees, also returned to the mine within 2 or 3 weeks after October 29 to apply for reinstatement. They asked the outside foreman what the respondent's attitude would be if they made application. He told them, "As far as I am concerned I wouldn't care, but Kenneth [Snarr] gave orders to tell you fellows to stay off the property." Dewitt Hoskins was employed by the respondent for 9 years at firing and hoisting coal. He joined the strike some time before October 29, 1935. Some time after joining the strike, when returning to receive his last wages paid him by the respondent, he asked the respondent to be reinstated. This request was refused, but a counter offer of a posi- tion at coal loading was made. However, coal loading was not sub- stantially equivalent to his former position, and it does not appear that any explanation was given him for the tender of the inferior position.31 Hoskins refused the offer and has never since been em- ployed by the respondent. After October 29 certain striking employees who sought entrance to go upon the mine property were not permitted to enter. One testi- fied that his brother, a foreman at the mine, sent him "word positive to stay off the premises." The record discloses no offer of reinstate- ment by the respondent to any striking employees and the substantial number of them never have been reinstated. However, save for Oates, Penrod, Ford, and Hoskins, none of the striking employees is shown by the record to have made or have attempted to make application for reinstatement, either personally, or through the U. M. W. A. or any other agency. We are satisfied that the reason for the respondent's refusal to reinstate Oates, and its further refusal of reinstatement, in effect, to Penrod, Ford, and Hoskins, was their union activities and engaging in the strike. There is no claim that the positions which these men had occupied with the respondent were not available or that the em- ployees themselves could not satisfactorily have performed the work. In view of the respondent's unqualified refusals to recognize and bargain collectively with the U. M. W. A. preceding the strike and its continued unwillingness to withdraw from that position 32 after its employees sought to remedy the situation through the exercise of their 31 See discussion supra pp . 598-599 regarding Proffitt's demotion to coal loading and cases cited footnote 17. In the Retaington-Rand case cited supra the Second Circuit Court of Appeals said ( p 871 ) : "It [the strike] -is a remedy parallel with recourse to the Labor Board ; its use, when unsuccessful , but in a controversy where the men are right, ought not, therefore , to be prejudicial to them " as The fact that the employees went on strike did not relieve the respondent of its duty to bargain collectively with their chosen representative Jeff erg-DeWitt Insulator Co. v. ANational Labor Relations Board, 91 P . ( 2d) 134 ( C. C. A. 4th ), cert den . 302 U. S. 731 ; Black Diamond Steamship Corpoiation v. National Labor Relations Board , 94 P. (2d) 875 (C. C A 2d ), cert. den , 304 U. S. 579 ; National Labor Relations Board v. Carlisle Lum- ber Co, 94 P. (2d) 138 (C. C. A. 9th), cert den ., 304 U S 575 ; National Labor Relations Board v Biles -Coleman Lumber Co ., 96 P. (2d ) 197 (C. C. A 9th). 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to strike,33 we are convinced that the respondent's denial of employment to Oates, Penrod, Ford, and Hoskins was occasioned by its definite course of opposition to recognition of the U. M. W. A. and the attendant resentment and hostility which it entertained toward those employees who through their union activities and the strike had sought a remedy.34 The offer by the respondent of an inferior position to Hoskins was no departure from, but in furtherance of its policy, and Hoskins was under no obligation to accept the position but was entitled to consider the offer as made a refusal to give him employ- ment.S5 The violence which occurred on October 29 was not, we feel, the cause of the respondent's rejection of the applications for rein- statement of the four men. There is no evidence that any of them engaged in, authorized, or ratified the acts committed at that time. Indeed, the record does not establish that Oates, Ford, or Hoskins were even present at or during the occurrence. The respondent in denying them reinstatement made no investigation of the nature and extent, if any, of their participation in the events of October 29.36 - The refusal of the respondent to reinstate Oates, Penrod, Ford, and Hoskins was a discharge 37 because of their union activities and their engaging in concerted activities for the purpose of collective bargaining and other mutual aid and protection. We find that the respondent in discharging these employees discriminated in regard to their hire and tenure of employment, thereby discouraging mem- bership in a labor organization; that in and by said acts the respond- ent has interfered with, restrained, and coerced its employees in rights guaranteed them under Section 7 of the Act. At the time of his discharge Oates earned between $20 and $25 a week; Penrod about $20 a week; and Hoskins $4 per day working from 2 to 6 days a week. Since their respective discharges Oates has earned $282.02, Penrod $459.92, and Hoskins between $700 and $800. We do not find, except in the instance of Oates, Penrod, Ford, and Hoskins, that the striking employees named in the complaint were as In the Remington-Rand case, cited Supra, the Circuit Court of Appeals said (p. 871) : "The Act expressly preserves the right to strike, § 13, and that includes a strike for refusing to negotiate as well as any other."' 34 That a refusal for such cause is an unfair labor practice see Black Diamond Steam- ship Corporation v. National Labor Relations Board, 2 Cir , 94 F. (2d ) 875 (C. C. A 2d), cert. den, 304 U. S. 579, and National Labor Relations Board v. Mackay Radio & Tel. Co., 304 U. S 333. $' See footnote 31. 86 National Labor Relations Board V. Kentucky Fire Brick Company, 99 F. (2d) 89 (C. C. A. 6th). Cf. Section 6 of the Act of March 23 , 1932, known as the Norris- LaGuardia Act: No officer or organization participating or interested in a labor dispute shall be held responsible or liable in any court of the United States, for the unlawful acts of individual officers, members or agents except upon clear proof of actual participation in or actual authorization of such acts or of ratification of such acts after actual knowledge thereof ( Sec. 6, Act of March 23, 1932 , 47 U. S. Stat. 70, C. 90). 87 National Labor Relations Board v. Mackay Radio & Tel. Co., 304 U. S. 333. WILLIAMS COAL COMPANY ET AL. 607 refused reinstatement by the respondent. As stated above, there is no evidence that any employees, other than these, personally through the U. M. W. A., or otherwise, made or sought to make application for reinstatement. While it has been held in some cases 38 that action of the employer under certain circumstances renders unneces- sary an application by striking employees for reinstatement, as where the employer invokes a general condition to reinstatement which is illegal under the Act,80 we are not entirely satisfied that the respond- ent's barring of certain employees from its premises, and its refusals to reinstate the four employees, under the circumstances of this case, necessarily warrants the conclusion that application by each of the remaining striking employees would have been futile. The record does not establish that the respondent discharged these employees. There is evidence that some of the striking employees returned to work for the respondent. We will dismiss the allegations of the complaint in so far as they allege a refusal by the respondent to reinstate the employees other than Oates, Penrod, Ford, and Hoskins. However, inasmuch as the strike in which the employees engaged was induced and prolonged by the respondent's refusal to bargain col- lectively, our order in remedying the situation will make provision for them 40 There is no showing that any of these employees en- gaged in, participated in, ratified, or confirmed any act of violence committed during the occurrences of October 29, above mentioned.41 We recently have had occasion to state fully the principles governing the remedy in such cases.42 Upon these principles our order herein will proceed. 4. Domination of and interference with the formation and adminis- tration of the local of the I. M. U., and support to the I. M. U. In 1933, sometime after the incorporation of the I. M. U., the respondent through Snarr directed the circulation among employees at the mine of the petition, heretofore, described, containing a pledge of employee allegiance to the I. M. U. and a request that a meeting for collective bargaining with the coal operators be arranged. The as Matter of Carlisle Lumber Company and Lumber & Sawmill Workers' Union, Local 2511, Onalaska, Washington, 2 N. L R. B. 248, 94 F. (2d) 138 ( C. C. A. 9th ), cert. den. 304 U. S. 575 ; Matter o f Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L R. B. 1252; Matter of Jacob A. Hunkele, trading as Tri-State Towel Service of the Independent Towel Supply Company and Local No. 40, United Laundry Workers Union, 7 N. L. R . B. 1276. $' See footnote 38. tONational Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2d), cert. den. 304 U. S. 576 ; and Black Diamond Steamship Corp. v. National Labor Relations Board, 94 F. (2d) 875 (C. C. A. 2d), cert. den. 304 U. S. 579. a See footnote 36. " Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent was not a member of The Operators' Association at that time. Circulation of the petition encountered considerable resent- ment by the employees, substantially all of whom were members of the U. M. W. A.43 Indeed, one of the mine foremen testified to his own refusal to obey Snarr's instruction that he circulate the petition, because "I felt like it wasn't my duty to carry the paper around as an organizer, I was acting as mine foreman." In late November or early December 1936 the respondent joined The Operators' Association. Theretofore, on November 24, 1936, it had sent a4 letter to Nance, stating, among other things : We have made application to join the Operators' Association and expect to operate under the provisions of contract between the Operators' Association and the I. Al. U:.. . At the time the above letter was written and thereafter there existed in full force and effect the agreement therein mentioned and above referred to,44 between The Operators' Association and the I. M. U. "binding on their membership as to wage scales and working condi- tions in the counties of Union, Webster, Hopkins, and Christian, in the State of Kentucky . . . [the terms and conditions of] which the parties and their membership mutually undertake to preserve ..."; and providing, among other things : (a) that the Agreement is a "closed shop Agreement between the parties. Members of the In- dependent Miners' Union only shall be employed in the mines under this contract"; 45 (b) that the Agreement constitutes the "only con- tract between the men employed by the Operators and The Operators' Association"; (c) that the duties of the local "Mine Committee shall be confined to the adjustment of disputes between the Mine Foreman or Superintendent and any members of the I. M. U."; (d) that "there shall be no demands made locally that will conflict with this Agree- ment"; (e) that "local conditions in any mine which conditions are not covered by this Agreement, shall be adjusted locally." Section 18, among other things provides that any strike or stoppage of work in connection with any dispute is forbidden, that upon failure of local agreement, such dispute be submitted to an arbitration com- mittee consisting in the first instance of the Commissioner of the Association or his appointee or other representative of the Asso- ciation, and the president of the I. M. U. or his appointee, and that any strike or stoppage of work should constitute cause for discharg- 4s See Section III B, 2, c supra 44 This is the agreement of November 14, 1936, between The Operators' Association and the I M. U See Section III A, supra and footnote 16. 45 Section 14 (10) of the contract permits the Operator to employ nonmembers of the I NI U for outside labor in an emergency or in the absence of any regular employee. Section 20 (1) of the contract excludes from the teams thereof employees engaged in cer- tain described forms of construction and maintenance work, and Section 20 (2) excludes certain supervisory employees and watchmen, within the discretion of the operator. WILLIAMS COAL COMPANY ET AL. 609 ing the officers of the local of the I. M. U. and the local mine com- mittee at the mine where the dispute has arisen, unless they "show that they have used due diligence to keep the men at work and them- selves report for work." The record shows that prior to November 25 officials of the I. M. U. understood that the provisions of the contract were to become oper- ative at the respondent's mine on December 1, 1936. On November 25, 1936, an officer and field worker of the I. M. U., respectively, the one accompanied by the respondent's mine foreman, and the other by the superintendent, Snarr, walked through the mine requesting all employees to sign certain individual contracts, above mentioned, providing in part : In consideration of my employment by the Company I agree : 1st. That the Company shall charge to my account all dues and assessments due I. M. U....48 2nd. That I am a party to and bound by the contract between The Operators' Association, and I. M. U. and any change therein that may be made.47 Prior to the time this request was made practically none of the employees was a member of the I. M. U. In the course of the request Snarr and the mine foreman told numerous employees that they would have to sign if they wished to retain their jobs. In reply to interrogation by employees as to whether they were compelled to sign, one of the I. M. U. officers stated, "Well, if you work under this organization naturally you have to sign these cards [printed form of individual contract] because it is a closed shop agreement." The field organizer similarly informed employees "that the contract would take effect December 1." As a result of this activity, substantially all of the employees signed individual contracts on November 25. In so signing they were considered to have become affiliated with the I. M. U. Two weeks later-a local of the I. M. U. was organized 48 at the mine, consisting of employees of the respondent who were members of the I. M. U. Although about 350 employees joined the I. M. U., only 20 49 The Constitution of the I. M U. provided that revenue of the I. M. U should be derived fiom the Local Unions, which should pay directly to the treasurer of the I. M U. a per capita amount of 50 cents for each member per month. The agreement between the Association and the I. M U. in effect November 16, 1930, authorizes the Operator to make the individual contract and provides for remission of dues checked off, to the I M U. and its local . Employees of the Williams mine paid dues amounting to 60 cents or more per month 44 See Section III A, supra. 48 The Articles of Incorporation of the I. M U. provide that the I. M U. "may charter and organize local units which shall be called Locals," with certain powers within their jurisdiction. The I. M. U. Constitution of 1933 in force in 1936 provided that the I. M. U. "shall have jurisdiction over all its local unions which shall be governed in all trade matters by this constitution " The functioning of the locals was limited by the teams of the agreement between The Operators ' Association and the I. M. U. These terms have been set forth above. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to 45 regularly attended the biweekly meetings of the local. At the last two meetings the number of members present was insufficient to conduct business. Since December 1, 1936, the contract between The Operators' Asso- ciation and the I. M. U. has been applicable to the respondent and its employees. In cooperation with the I. M. U. the respondent has enforced the closed shop, and compelled acquiescence in a continuance of the check-off. Certain employees were subject to deduction from their wages of an initiation fee to the I. M. U. Upon being notified by Nance of the name of any employee who failed to join the I. M. U. or who had been expelled from membership in the I. M. U., as for engaging in organizational activity in behalf of the U. M. W. A., the respondent would discharge such employee. In this manner var- ious employees had their employment terminated. The respondent has regularly checked off dues from the employees' wages and trans- mitted the sums to the I. M. U. and the local.-"' The attitude of the respondent concerning the purpose of the I. M. U. local is disclosed in its treatment of what employee griev- ances that organization has brought to its attention. On one occasion several employees were laid off allegedly for mining coal which con- tained impurities. Because these employees considered themselves aggrieved by the lay-off, the local voted to discuss the matter with Snarr and appointed a committee of two for such purpose. Only one of the committee members actually went to see Snarr; the other was "scared they would fire" him. Snarr told the single committee member that the employees might return to work, but stated that he wanted it understood that the employees were not to dictate to him concern- ing the operation of his business.50 On another occasion the local through its pit committee sought to have Snarr change a mine practice which required double shoveling of the same coal into the cars. Snarr went to Nance about the grievance, who told Snarr that the practice might be continued for the time being. In the winter of 1936 em- ployees worked 81/2 hours a day, including the dinner hour, although the outstanding agreement with the I. M. U. called for only a 7-hour day and 35-hour week. The I. M. U. local decided to present this matter to Snarr. Upon complaint being made Snarr again proceeded to Nance, stating he wished to operate a 71/2-hour shift. Nance said it would be all right if the local approved and was satisfied. However, nothing in fact was done and the men continued to work between 45 and 48 hours a week, including the dinner hour. The record shows 40 See footnote 46 supra. 60 Cf. National Labor Relations Board V. American Potash and Chemical Corporation, 88 F. (2d ) 488 (C. C. A. 9th ), where the Circuit Court of Appeals held that certain con- duct by an employer toward a company-dominated union indicated that the company was determined to continue Its domination and to prevent the union from ridding itself of its shackles. WILLIAMS COAL COMPANY ET AL. 611 that the respondent violated other provisions of the contract with impunity. It is self-evident that the local of the I. M. U. at the respondent's mine is completely the respondent's creature. The letter of Novem- ber 24, read in the light of subsequent events, shows clearly that at that time the respondent already was resolved, irrespective of the desires of its employees, to establish between itself, these employees, and the I. M. U. a relationship similar to that existent among mem- bers of The Operators' Association, their respective employees, and the I. M. U. Such relationship comprehended the respondent's be- coming a member of The Operators' Association and all its employees joining the I. M. U.; the application of the provisions of the con- tract between the Association and the I. M. U. to the industrial rela- tions of the respondent and its employees, including the provision for a closed shop; and the creation of a local organization 61 of the I. M. U. at the respondent's mine. As above stated, on November 25, in furtherance of this aim, the respondent through the use of its economic power and with the co- operation of the I. M. U. intimidated and coerced substantially all of its employees, few, if any whom then belonged to that organization into joining the I. M. U."12 authorizing a check-off to it of membership dues and binding themselves to the agreement between the I. M. U. and The Operators' Association.°3 The respondent thus brought into being an I. M. U. membership with which a local could be set up, subject to the agreement, and assured to such local the financial means for its existence. In this fashion the respondent instigated and fostered the formation of the local. Since November 25 the respondent has wholly dominated and sup- ported the I. M. U. local at its mine. Adherence of employees to that organization has been compelled through the respondent's vigorous 91 See discussion above as to provision of 1936 contract and footnote 48 on the limited nature of the local's jurisdiction. as At the hearing Nance in his testimony discussed the assumption by an employee of affiliation with the I. M. U., through attending a local union meeting (after an I. M. U. local was formed at his mine ) and taking an oath to the I. M. U., and becoming affiliated with the I. M. U. through signing the individual contract which authorized a check-off of dues to the I. M. U. and bound the employee to the terms of the agreement between the 1. M. U. and The Operators' Association including the closed-shop provision . However, in so far as this proceeding is concerned the distinction between an employee who took an "obligation," and one who did not, is without relevancy . Moreover, the record shows that the employees generally understood that in signing the individual contracts they became members of the I. M. U. Nance testified, in response to interrogation by the Trial Examiner , as follows : Q. Suppose he never attended a meeting , would he be a member of the I. M. U.? A. Well, in one sense he would , and in one sense he wouldn 't. He would certainly not be an obligated member, but he would be a member by reason of his individual contract to be bound by the provisions of the contract that the organization has with the operator. 53 That the respondent's compulsion upon its employees to join the I. M. U., and author- ize the check-off was not , because of the closed -shop agreement, proper, is discussed below. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforcement of the closed-shop provision. 54 Substantial sums of money have been directed to the local by the respondent through the maintenance of the check-off system which the respondent has co- erced its employees into accepting under the same compulsions by which it enforced membership in the I. M. U. Lastly the functioning of the local as a labor organization has been strictly limited in im- portant respects, such as restrictions upon the kind of disputes it may present to the respondent, upon the use of strike action, and upon the freedom of action of its officers, by the agreement 55 between the I. M. U. and The Operators' Association which the respondent like- wise forced its employees to accept as a condition of employment. The subserviency of the local to, the will of the respondent is shown both by the fruitless attempts which it has made to adjust grievances and by the respondent's repeated violations of important provisions of the I. M. U. agreement.66 The indifference of the respondent to its performance of contractual provisions for its employees' benefit stands in marked contrast to its enforcement of the closed-shop provision. The same considerations which lead us to conclude that the re- spondent has formed, dominated, and supported the local of the 1. M. U. make it apparent that the respondent likewise has supported the I. M. U. Through threatened loss of employment, the respond- ent coerced its employees into joining the I. M. U., into acquiescing in the regular check-off of clues to the I. M. U., and otherwise in being bound by the agreement between the I. M. U. and The Operators' Association. In all this the respondent supported the I. M. U. It need hardly be said that the respondent's various acts of domina- tion, interference, and support respecting the local of the I. M. U. at its mine and the I. M. U. were not, by reason of the closed-shop pro- vision in the outstanding I. M. U. agreement, validated by the terms of the proviso to Section 8 (3) of the Act.i7 The proviso is permis- sive in character, and where its terms are met renders legal, in so far as the Act otherwise would render illegal, the making of and per- formance of a closed-shop agreement between an employer and a ea That this compulsion was not protected under the proviso to Section 8 (3) of the Act is discussed below. 15 See discussion above as to the provisions of the I Df U. agreement 6O Cf. National Labor Relations Board v. American Potash and Chemical Corporation, 98 F. 2d 488 (C C. A. 9th) 67 The proviso to Section 8 (3) of the Act is as follows : provided, That nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made. Cf Hatter of Clinton Cotton Mills and Local No. 2182, United Fertile Workers of America, 1 N. L. R. B. 97. WILLIAMS COAL COMPANY ET AL. 613 labor organization. However, immunity is expressly withheld if the closed-shop agreement is one entered into with a labor organization which is not the designated collective bargaining representative of a majority of the employees in the appropriate collective bargaining unit covered by the closed shop, or with a labor organization which has been established, maintained or assisted by any action defined in the Act as an unfair labor practice. As stated above, on November 25, 1936, the respondent required immediate affiliation with the I. M. U. as a condition of employment of all its employees. Whether the respondent at that time was party to the agreement of November 14, 1936, between The Operators' As- sociation and the I. Al. U. is uncertain, for the record fails to disclose if the respondent's application for membership in that body, referred to in its above letter of November 24 to Nance, had been favorably acted upon by the Association prior to November 25, or what the legal effect of such application was. Unless the respondent was a party, its requirement of I. M. U. affiliation did not derive from any contractual obligation to a labor organization, and accordingly would not have been sanctioned by the proviso to Section 8 (3). And if the respondent first became a party subsequent to November 25, whether by having joined The Operators' Association after that date or otherwise, such assumption of obligation under the I. M. U. agree- ment and continued enforcement thereafter of the closed shop, as well as the precedent imposition of I. M. U. affiliation as a condition of employment, would not be protected by the proviso to Section 8 (3). In such case, the I. M. U., as respects the respondent's em- ployees, would be a labor organization maintained and assisted by unfair labor practices,16 within the meaning of the proviso. Fur- ther, since the membership of the I. M. U. local stemmed from the same coercion, the local would be a labor organization established, maintained, and assisted by unfair labor practices.69 However, as- suming that the respondent was bound on November 25 by the I. M. U. agreement and by the closed-shop provision therein con- tained, the respondent, nevertheless, could not, nor may it now, avail itself of such agreement and provision to cloak its activities regarding the I. M. U. and the I. M. U. local. When the respondent initiated the closed shop at its mine, the I. M. U. was not the designated collec- tive bargaining representative of a majority of the respondent's em- ployees within any conceivable appropriate bargaining unit composed "The I. AT U. and local of the I. M. U. would be established and/or maintained and assisted by action defined as unfair labor practices in Section 8 (1), (2), and (3) of the Act, as follows : Acts of tl:e respondent in fostering membership in the I M U , in pi oh'br? - ing employees from Joining any other labor organization ; in coercing employees to author iz o a check-off without an agreement with a freely chosen labor organization to support sue-) coercion; and other acts. 60 See footnote 58 supra. 164275-39-vol x[--40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of such employees , including the unit covered by the closed-shop provision as applied to such employees . As heretofore set forth, practically none of the employees was then a member of the I. M. U. In certain cases involving employer associations we have indicated that a labor organization, designated as collective bargaining repre- sentative by a majority of all employees of all employer members of such an association , would upon the facts there involved constitute the exclusive collective bargaining representative of all such em- ployees, irrespective of whether a majority of the employees of any single employer member had so designated such labor organization 80 However, even if the record satisfactorily disclosed a majority rep- resentation by the I. M. U. on November 25, 1936, of all employees of members of The Operators ' Association, including the employees of the respondent, the principles announced in those cases could have no application here for, as found below , the Association itself domi- nated and interfered with the administration of the I. M. U., and contributed support to it. Under these circumstances, the issue as to whether the I. M. U., and, accordingly , the local ever properly could have been recognized and bargained with as a representative of the respondent's employees, or as to whether the closed-shop agree- ment between the I . M. U. and The Operators ' Association properly could be enforced in so far as it applied to the respondent's em- ployees, would have to depend upon whether the I . M. U. and the I. M. U. local constituted the freely chosen representative of a ma- jority of the respondent's employees within an appropriate unit composed of such employees. Thus far we have assumed that the respondent's requirement of its employees as a condition of employment that they authorize a check-off of dues to the I. M. U. and the I . M. U. local could have been excused under the proviso to Section 8 (3). However, the im- position and maintenance of the check-off did not result from an agreement with a labor organization ,"' but constituted simply an exaction 62 by the respondent of individual employees, in furtherance °Matter of Shipowners' Association of the Pacific Coast et al. and International Long- shoremen's and Warehousemen's Union, District No. 1, 7 N. L. R. B. 1002; Matter of Mobile Steamship Association et al. and International Longshoremen and Warehousemen 's Union, 8 N. L. R. B. 1297. e! The I. M. U. agreement of November 14, 1936 , did not provide for a check-off, but left such matter for negotiation and individual agreement between each operator and his re- spective employees: Sections 21 (3), 11 (3), (4) and (5) of the agreement. It will be noted that there is no question here of the validity , under the proviso to Section 8 (3), of an agreement for a check-off made by an employer with a labor organization representing an unfettered choice of a majority of his employees , nor of the employer's performance of an authorization to check-off voluntarily granted by an individual employee. Cf. Matter of National Electric Products Corporation and United Electrical and Radio Workers of America, Local No. 609, 3 N. L. R. B. 475, 486 , footnote 10; also Matter of Clinton Cotton Mills and Local No. 2182, United Textile Workers of America, 1 N. L. R. B. 97, 110. as The acceptance by a union of dues remitted pursuant to check -off imposed under circum- stances such as here prevailed, cannot remove from the imposition of the check -off its char- acter as an unfair labor practice of the employer. WILLIAMS COAL COMPANY ET AL . 615 of the respondent's plan to foster 63 the I. M. U. and I. M. U. local. The imposition and continuance of such condition of employment does not come within the language of the proviso relating to per- missible conduct, and is violative of Section 8 (1), (2), and (3) of the Act. Hence, in all events, the respondent could not properly have made or enforced a closed-shop agreement relating to the I. M. U. and the I. M. U. local, because the check-off, under the circumstances, constituted maintenance and assistance to these or- ganizations beyond the ambit of exculpation and within the mean- ing of the words, maintenance and assistance, as used in the proviso. We find that the respondent instigated, fostered, dominated, and interfered with the formation and administration of the local of the I. M. U. at its mine, and contributed support to it and to the I. M. U.; that in and by such acts the respondent has interfered with, restrained, and coerced its employees in rights guaranteed them by Section 7 of the Act.64 5. Discrimination as to terms and conditions of employment, and the discharges of 1937 As above stated, the respondent on November 25, 1936, required of its employees as a condition of employment that they become members of the I. M. U., authorize a check-off of dues to that or- ganization, and bind themselves to the I. M. U. agreement. Through the force of the closed-shop provision and otherwise this condition remained at all times operative thereafter. Failure of any employee to conform to the condition made him subject to expulsion from the I. M. U. and to discharge. We have indicated above that the closed- shop provision was not protected by the proviso of Section 8 (3) of the Act.6S Richard Hunt was discharged by the respondent on April 23, 1937, and his job given to another employee. He had been em- ployed at the mine for 12 years, and the record shows that work -similar to that performed by Hunt is being performed on another shift by an employee his junior in service. Hunt joined the U. M. W. A. in February 1937. A few days be- fore his discharge he was told by the mine foreman that he had 63 In Matter of Clinton Cotton Mills and Local No. 2182, United Textile Workers of America, 1 N. L. R . B. 97, 110 , the Board pointed out, in respect to somewhat similar •circumstances as follows : While the check-off is ordinarily a legitimate method of collecting union dues with the assistance of the employer, when it is used as merely one device among many whereby the employer fosters and supports a management-controlled organization, it comes within the ban of Section 8, subdivisions ( 1) and (2). 64 National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261; National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 IT. S. 272; 'Consolidated Edison Company of New York, Inc. Y. National Labor Relations Board, 59 Sup. -Ct. 206 15 See Section III B 4. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD better attend an I. M. U. meeting or he would be fined. Hunt re- fused to attend saying, "They can put that club in my hand but they ain't going to make me whip anybody with it." The fore- man replied, "It might be a good idea for you to whip somebody with it." On April 23 Hunt was discharged by the foreman. The only explanation given him was "They didn't need him." Hunt had never been laid off or discharged before. None of the above facts was controverted by the respondent at the hearing, nor did it advance any reason for Hunt's discharge. As above stated Hunt was employed at the mine for 12 years, and there is no showing of complaints ever having been made about his work. His position was filled by another employee. Hunt was the only employee discharged at the time. We are satisfied that the respondent discharged Hunt because of his disinterest in and disloyalty to the I. M. U. The respondent's acts generally in connection with the I. M. U., and its mine fore- man's statements to Hunt above mentioned show that the discharge was in pursuance of the general policy which the respondent initiated on November 25. We find that the respondent discharged Hunt on April 23, 1937, because of his disinterest in and disloyalty to the I. M. U. At the time of his discharge Hunt was earning an average weekly wage of about $50. Since his discharge he has not had other regular and substantially equivalent employment. He has earned $4 since his discharge. Ulysses Bacon, James Sharber, Claude Snorton, Arthur Wicks, Boy Holmes, Leslie Taylor, Willard Mudd, Saran Mudd, Andrew Snorton, Oliver Flowers, and William Crick were each discharged by the respondent in June 1937 under somewhat similar circumstances. With the exception of Taylor and Crick, each joined the I. M. U. in November 1936; Crick joined in May 1937. Bacon, Sharber, Claude Snorton, and Wicks were discharged on June 2. Each had theretofore joined the U. M. W. A. and each, ex- cept Sharber, was active in a local chartered by the U. M. W. A. for employees at the respondent's mine. Bacon was secretary of the local; Snorton had solicited members for it, and Wicks was a mem- ber of a pit committee which the local set up. At the time of the respective discharges Bacon had been employed for 2 years; Sharber for 1; Snorton for 18, and Wicks for 10. Three days before the discharges Wicks was told by one East, a field organizer for the I. M. U., that he, Wicks, would again have to sign an I. M. U. card. East stated that "he had found several names ... that had joined the United Mine Workers of America ... [and] thought [Wicks'] ... was in the bunch." Wicks admitted that he was a member of the U. M. W. A. WILLIAMS COAL COMPANY ET AL . 617 On June 2 the president of the I. M. U. local, Woodruff, and East approached Bacon. East said, "This here U. M. W. A. stuff going on around here ... is getting a lot of you fellows messed up ... they know they have got no right in this field, they know we have got a closed shop agreement . . . if you work here you are going to be an I. M. U." Bacon asked him whether he was "properly advised on the law regarding the Wagner Act" and walked away. Thereafter Woodruff and East accosted Snorton. Woodruff said, "They tell me you have joined the United Mine Workers." Snorton answered that he had, and that he "left the I. M. U." The respondent informed Bacon, Sharber, and Snorton, at the time of their respective discharges, that the reason therefor was the revocation by Nance of their memberships in the I. M. U. Wicks was informed that Snarr had ordered "to send you out of here . . . you wouldn't sign an I. M. U. card." Bacon went to see Snarr about his discharge and was told, "The I. M. U. has a closed shop contract agreement and we can't use you." Holmes and Taylor were discharged on June 7. Holmes was presi- dent of the U. M. W. A. local and Taylor, a member. About a week preceding the discharge East and Woodruff came to Holmes' home and stated, "We are kind of checking up on these fellows today and we know that you have been attending several United Mine Workers meetings and that you have been riding around to a whole lot of them, and we are going to have you to sign another J. M. U.] card . . ." Holmes was told that if he refused to sign or if he re- mained a member of the U. M. W. A. he would lose his job. At the time of their dismissal both men were told by the mine foreman that the reason therefore was the revocation of their I. M. U. memberships. Snarr said to Holmes shortly thereafter, "Well, we don't know that you have joined [the U. M. W. A.] but you have been talking a whole lot and going around a whole lot . . ." Taylor protested to Snarr that he was not a member of the I. M. U. since he had not signed an I. M. U. card. Snarr replied, "That is just it, you haven't signed anything." The record shows that despite Taylor's failure to sign a card, the respondent checked off dues from his wages to the I. M. U. Taylor visited Nance who said that he, Taylor, was "agitating." Willard Mudd was discharged on June 29 by his foreman who told him that his I. M. U. membership had been revoked. Mudd joined the U. M. W. A. in May. He attended meetings of its local and drove other employees in his automobile to them. On the day following the discharge Nance told Mudd that his membership had been revoked because he "probably . . . joined some other union," that a report had been received that "Mudd joined the United Mine Workers" and had been "hauling passengers to the United Mine Workers' meetings." 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sam Mudd, Andrew Snorton, Flowers, and Crick were discharged on June 30. Each had theretofore joined the U. M. W. A., and Snorton was vice president of the U. M. W. A. local. Flowers had engaged in active solicitation of members for the U. Al. W. A. At the time of their respective discharges these employees likewise were told that their memberships in the I. M. U. had been revoked by Nance. Mudd, Snorton, and Flowers individually went to see Nance About the matter. In response to interrogation Nance told Mudd, "You joined the United Mine Workers of America, didn't you?" He made a similar statement to Snorton, and said to Flowers that he "had heard that the men up there had been affiliated with the U. M. W. A. and naturally they could not belong to two organizations at the same time." Crick did not see Nance but discussed his discharge with East, the I. M. U. field organizer who had solicited Crick's mem- bership in the I. M. U. East refused to explain the discharge to Crick, stating only that he "had a pretty good idea" as to the cause. We find that the respondent discharged Ulysses Bacon, James Sharber, Claude Snorton, Arthur Wicks, Roy Holmes, Leslie Taylor, Willard Mudd, Sam Mudd, Andrew Snorton, Oliver Flowers, and William Crick, because of their memberships and activities in the U. M. W. A. and their refusal to remain loyal to the I. M. U.68 At the time of their respective discharges Bacon was earning about $61 a month, Sharber about $3 per day working 3 or 4 days a week, Claude Snorton an average of $7.50 per week, Wicks between $15 and $20 a week, Holmes about $25 a week, Taylor between 72 and 74 cents per hour, working 91/2 hours a day from 2 to 6 days per week, Willard Mudd an average weekly wage of $20, Sam Mudd between $20 and $22.50 weekly, Andrew Snorton between $20 and $25, Flowers be- tween $6 and $8 a week, and Crick between $15 and $16 a week. Since their respective discharges, Bacon has earned $43.34, Sharber $5.49, Claude Snorton $4.50, Wicks nothing, Holmes $1.50, Taylor nothing, Willard Mudd $85, Sam Mudd $15.50, Andrew Snorton $2.30, and Flowers $3.75. We find that the respondent, Williams Coal Company, in requiring as a condition of employment that its employees become and remain members of the I. M. U. and the I. M. U. local, authorize it check-off of dues to those organizations, bind themselves to the I. M. U. agree- ment, and refrain from joining any labor organization other than the I. M. U., discriminated in regard to the terms and conditions of the employment of its employees, thereby encouraging membership ee Nance testified that the revocations of membership in the I. M. U., resulting in the discharge of employees , were made because such employees were members of the U. M. W. A. and were "agitating" against the I. M. U. Nance stated that it was his policy not to retain as a member of the I. M. U. anyone whom he discovered to be a member of the U. M. W. A. who was "agitating" against the I. M. U. He stated that he did not think it possible for an employee to be a member of both organizations and be loyal to both. WILLIAMS COAL COMPANY ET AL. 619 in the I. M. U. and discouraging membership in any other labor organization, including the U. M. W. A.67 We further find that said respondent in and by discharging Richard Hunt, Ulysses Bacon, James Sharber, Claude Snorton, Arthur Wicks, Roy Holmes, Leslie Taylor, Willard Mudd, Sam Mudd, Andrew Snorton, Oliver Flowers, and William Crick, and each of them, discriminated in regard to the hire and tenure of employment of its employees, thereby encouraging membership in the I. M. U. and discouraging membership in any other labor organization, including the U. M. W. A. We further find that said respondent, in and by said discrimination in regard to the terms and conditions of employment of its em- ployees, and their hire and tenure of employment, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. We will dismiss for want of proof the allegations of the complaint that the respondent discriminated in regard to the hire and tenure of employment of Roy Sharber and Flem Snorton, Jr. 6. The alleged refusal of the respondent in 1937 to bargain collectively with the U. M. W. A. On May 13, 1937, the U. M. W. A. requested the respondent in writing to bargain collectively with it regarding wages, hours of employment, and working conditions at the respondent's mine. The respondent never replied to this request. At the hearing certain ap- plication and membership cards of the U. M. W. A., signed by em- ployees of the respondent, were introduced in evidence 68 as part of the proof tending to establish that at that date and thereafter a ma- jority of the employees at the respondent's mine within an appro- priate bargaining unit, had designated the U. M. W. A. their repre- sentative for purposes of collective bargaining, and that, accordingly, the U. M. W. A. was the exclusive bargaining representative at that time and times of all employees at the mine. However, upon request of counsel for the Board, joined in by the representative of the U. M. W. A., the Trial Examiner ruled that the evidence was to be made available for examination only by himself, the Board, and its agents and not by the respondent or anyone else. The Trial Examiner °7 What has been stated in Section III B 4 supra, concerning the invalidity of the closed-shop provision contained in the agreement between The Operators' Association and the I. M. U., in so far as that provision became operative at the mine , and the consequent unavailability of such provision as excusing acts of the respondent under the proviso to Section 8 (3) of the Act, is equally applicable here and requires no restatement. Reference is also here made to the discussion above concerning the validity of the check-off, under the proviso. 68 Board Exhibit No. 32. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated as the basis for his ruling the fact, as shown by the record, that the respondent had followed a policy of discharging employees for membership or activities in the U. M. W. A., upon its learning thereof. Since the respondent requested an opportunity to examine this evidence and was afforded no opportunity to do so under the Trial Examiner's ruling, we will not determine the issue whether the respondent in May 1937 and thereafter refused to bargain collec- tively with the U. M. W. A. as the representative of its employees. Accordingly, we will dismiss the complaint, without prejudice, in so far as it alleges that the respondent on May 13, 1937, and thereafter refused to bargain collectively with the U. M. W. A.69 C. Reinecke Coal Mining Company-The unfair labor practices 1. Domination of and interference with the administration of the local of the I. M. U. and support to the local and the I. M. U. The respondent, Reinecke Coal Mining Company, became a member of The Operators' Association some time prior to the organization of the I. M. U., and has been a member ever since. In June and July 1933, it joined with other mine operators of the Association in insti- gating and fostering through that agency the formation of the I. M. U. As heretofore found, the operators proposed to employ the I. M. U. as a means of thwarting U. M. W. A. activities in their respective mines.4° Upon the formation of the I. M. U., the respondent proceeded to encourage and coerce its employees into joining that organization. During July 1933, its general manager, one Overall, enrolled members for the I. M. U. in his office. Thereafter, a local of the I. M. U. was established at the mine. 71 In August 1933, soon after the execu- tion of the first written agreement between The Operators' Associa- tion and the I. M. U.,71 the respondent posted at its mine a notice to all employees announcing that it had made a contract with the I. M. U., that "such contract provided that all employees of this w See Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 23, 10 N. L. R. B. 88. 71 See Section III A, en pea. , 71 See footnote 48 regarding authority of I M. U. to charter and organize local unions, as provided for in its Articles of Incorporation Both the I Al. U Constitution of 1933 and that of 1937 granted to the I. Al. U. jurisdiction over all its local unions and pro- sided that these locals should be governed by the I. Al. U. Constitution. The agreement between The Operators' Association and the I. Al. U effective August 1, 1933, and the subsequent agreements of 1934, 1935, and 1936 heretofore referred to, recog- nized the existence of locals and local mine committees The agreements in effect in 1933, 1934, and 1935 contain provisions identical with those in the Agreement of 1936, which in effect seriously curtail and restrict the powers and rights of local mine committees and unions See Section III B 4 sup"a 72 See Section III A, sups a. WILLIAMS COAL COMPANY ET AL . 621 company become members of the Independent Miners Union," and that: It will be required of all employees of this company that they become members of the Independent Miners Union during this week by visiting the office of the company and signing the in- dividual contract of employment and cut-off sheet. No man will be permitted to work that has not signed this contract of employment and cut-off sheet. The mine will be in operation on Saturday of this week and each and every employee of this com- pany that desires to work that day must previously have signed the contract of employment as herein stated. Opportunity will be given Saturday morning those men not having read this notice and not being aware that they would be required to sign the contract of employment, to sign same Saturday morning and then go into the mine.73 Thereupon the employees at the mine, a majority of whom were not members before August 10, 1933, were compelled, in order to re- tain their jobs, to execute individual contracts whereby they became affiliated with the I. M. U., agreed to a check-off from their wages of dues and assessments to the I. M. U., and undertook to be bound as parties to the agreement, and amendments thereof, between The Operators' Association and the I. M. U. The record shows that the respondent, through its general manager and bookkeeper would not permit any employee to enter the mine unless he signed the individ- ual contract. In this manner all employees became members of the I. M. U. and of the I. M. U. local at the mine. At no time since August 1933, has there been either relaxation or abrogation by the respondent of the requirement that employees at the mine, in order to retain their employment, be members of the I. M. U. and the local, or of the requirement that they acquiesce in the check-off of dues and assessments' to these organizations, or that they be bound to the terms of the agreements between the I. M. U. and The Operators' Association'74 successively made, and the individ- ual contracts with the respondent. Employees coerced into joining the I. M. U. in 1933, were thereafter forced to continue such affilia- tion through the respondent's maintenance in effect, and enforce- ment, of the closed-shop provision in the I. M. U. agreements. They likewise have been compelled by the respondent to accept a perpetua- tion of the check-off, because of the respondent's insistence upon ad- herence to the terms of the individual contracts as a condition of em- ployment. Through their coerced membership in the I. M. U. and 73 For the terms of the individual contract of employment and cut-off sheet referred to, see Section III B 4 , supra. 76 See Section III A supra, with respect to the agreements of August 10, 1933, of April 1, 1934 , thereafter renewed on June 20, 1935 , and of November 14, 1936 See also footnote 48. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their coerced adherence to the terms of the individual contracts, these employees have at all times been bound by the provisions of the 1. M. U. agreements with The Operators' Association as to hours, wages, working conditions, representation in collective bargaining, and matters of concerted action for mutual aid and protection. Per- sons employed for the first time, or reemployed during 1935 and 1936 became subject to the same conditions upon their employment or reemployment. They were required to join the I. M. U., to pay it an initiation fee, and to accept the check-off of dues and assessments to that organization and the local. In December 1936, employees gen- erally, were asked to reexecute the individual contracts, and in Feb- ruary 1937, were notified that their presence was required at an I. M. U. meeting where a pledge of loyalty to the I. M. U. would bq taken. In February and June 1937, certain employees, mentioned below, were suspended by the I. M. U. and discharged by the respond- ent for alleged disloyalty to the I. M. U. or membership in and ac- tivities in behalf of the U. M. W. A. Throughout the period the re- spondent transmitted substantial sums of money to the I. M. U. and the local in accordance with the check-off. The lack of success which attended attempts by the I. M. U. local at the Williams Coal Company mine to adjust grievances, and the indifference of the employer there to obligations imposed upon it by the I. M. U. agreement '75 find their counterpart in events and circum- stances at the mine of the Reinecke Coal Mining Company. In 1937 the local requested the respondent to pay certain machine operatives the 541/2 cents per ton wage specified in the agreement instead of the 53 cents per ton they were given. Thereafter, the local received notifi- cation from Nance and the local pit committee that the committee had capitulated to the 53-cent rate as consideration for an increase in the wage rate of certain other employees. However, neither Nance nor the local committee had been authorized to consent to such a change, and the employees were considerably dissatisfied with the result. Com- plaint was also made to the respondent and Nance about the respond- ent's violation of a provision in the contract to the effect, "The operator shall see that an equal turn is offered to each miner." No satisfaction was obtained in respect to this grievance. The respondent violated other provisions of the contract. The foregoing facts show, and the record establishes, that the local of the I. M. U. at the respondent's mine had its genesis in the activities of The Operators' Association and of its members in promoting and causing to be formed, the I. M. U. The formation of the local occurred under circumstances of aggravated company-domination, interference, and support, for the respondent's coercion of employees in 1933 to join the I. M. U., to authorize a check-off, and to bind themselves to 71 See Section III B 4, supra. WILLIAMS COAL COMPANY ET AL. 623 the I. M. U. contract, related to an organization which the respondent, along with other members of The Operators' Association, itself had established through the Association for that very purpose. By creat- ing, through the instrumentality of the Association, the parent body and membership in it, and by coercing acceptance of the check-off to and the assumption of obligation under the outstanding agreement with the created parent body, the respondent instigated, fostered, and supported the formation of the local at its mine. Since its formation in 1933, the local and its administration at all times have been dominated, supported, and interfered with by the respondent in numerous ways. Through enforcement of the provision for a closed shop, the respondent has compelled old and new employees to be and remain members of the I. M. U. and the local, and by the same and other coercive means has compelled them to accept a check- off of substantial sums to these organizations. Similarly, it has con- fined in important respects 76 the functioning of the local as a labor organization, through the successive agreements which The Operators' Association, acting for itself and as agent for the respondent, entered into with the Association's and the respondent's own creature, the I. Al. U., and, independently thereof, by means of the respondent's own requirement that the employees bind themselves in the individual contracts to the terms of such agreements." The respondent's domina- tion of the affairs of the local and support to it evidence themselves in the character of treatment accorded the local by the respondent, a kind of employer treatment paralleling that heretofore found in the case of the respondent, Williams Coal Company. It is equally clear that the respondent at all times has supported the I. Al. U. By coercing its employees into being and remaining members of that organization ever since its formation, and into acquiescing in the check-off and assumption of contractual obligation to it under its agreements, the respondent assured the I. M. U. the requisites of organ- ization, members, financial means, and adherence. In so far as the respondent's domination, interference, and sup- port, above set forth, respecting the I. M. U. and the I. Al. U. local occurred prior to the effective date of the Act, no unfair labor prac- tices may be found.78 The facts and circumstances therein involved, however, are of importance in determining another issue, whether the continuance of such domination, interference, and support, or any part thereof, subsequent to July 5, 1935, was sanctioned by the proviso to Section 8 (3) of the Act.79 79 Cf. Section III B 4 , sepI a. 77 The individual contracts remained In force and were reexecuted as set forth , supra. 78Jefery-DeWitt Insulator Co. v. National Labor Relations Board, 91 F. ( 2d) 134 (C C. A 4th ), cert den . 302 U. S. 731, and National Labor Relations Board v. Carlisle Lumber Co, 94 F. (2d) 139 (C. C A: 9th ), cert den. 304 U. S. 575. 70 The proviso to Section 8 (3) is set forth in footnote 57. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated above,80 the proviso to Section 8 (3) validates, as con- cerns the Act, only those closed-shop agreements which meet the requirements of the proviso. Validation is expressly withheld by the language of the proviso from an agreement which is made with a labor organization "established, maintained, and assisted by any action defined in . . . [the] Act as an unfair labor practice." As previously pointed out, such an agreement, and acts of the employer in performance thereof, are open to challenge under one or more of the subdivisions of Section 8.81 It is apparent from what has heretofore been set forth, and found, that at the time the Act became effective the I. M. U. and the local of the I. M. U. at the respondent's mine were labor organizations "established, maintained, and assisted by action defined in the Act as unfair labor practices." S2 They still remained and constituted, so far as the employees of the respondent were concerned, organizations whose formation and administration had been and were dominated, interfered with, supported, and maintained by the respondent under the plan designed by The Operators' Association to thwart freedom of self-organization in western Iientucky.83 Any intransigency upon so See Section III B 4, supra. e1 The Senate Report accompanying the Act, Senate Report No . 573, 74th Cong., 1st Sess. ( 1935 ) pp. 11-12, states : "Secondly, the . . . [Act] is extremely careful to fore- stall the making of closed-shop agreements with organizations that have been 'established, maintained or assisted ' by any action defined in the . . . [Act] as an unfair labor prac- tice " See Matter of Clinton Cotton Hills and Local No 2182, United Textile Workers of America, 1 N L R. B. 97; Matter of National Electric Products Corporation and United Electrical and Radio Workers of America, Local No 629, 3 N. L. R. B. 475; Matter of Hill Bus Company, Inc. and Brotherhood of Railroad Trainmen, etc, 2 N. L. R B. 781. sa The I. M. U. and the local were established , maintained , and assisted prior to the Act, by action of the respondent defined in subdivisions ( 1), (2), and ( 3) of Section 8 of the Act as unfair labor practices , as follows : Acts of the respondent in concert Rith, and through the agency of The Operators ' Association to instigate , promote and support the formation of the I M. U. ; in fostering the formation of the local , in compelling the respondent ' s employees as a condition of hire and tenure of employment to become and remain members of the I M U , and of the local which the respondent itself , and acting through the Association had set up for such purpose ; in prohibiting the employees from joining a labor organization not created by the respondent; in coercing the employees into accepting a check -off and into contractually binding themselves to labor organizations thus created by the respondent ; and other acts. si There is nothing in the language of the proviso or the Act , nor is there any com- pelling reason which requires that the words "established , maintained , or assisted" as used in the proviso be construed to except from the exculpatory clause only those closed- shop agreements made with organizations established , maintained , or assisted subsequent to the enactment of the Act. In Matter of Clinton Cotton Mills and Local No. 2182, United Textile Workers of Ame,iea, 1 N L R B 97 , 108, the Board stated: Nor is it [the parenthetical clause in the proviso ] limited to conduct after July 5, 1935, for it includes , for example , a labor organization established prior to July 5, 1935, by conduct or means characterized as unfair by Section 8 Moreover, the exclusionary clause of the proviso clearly has application to organizations, such as here involved , which subsequent to the effective date of the Act, and at the time the closed -shop agreement was made with them , have retained their character as, and occupy the status of, organizations "established , maintained , or assisted" by action de- fined as unfair labor practices , even though the pertinent action occurred prior to the Act. Cf. Jeffery-DeWitt Insulator Company v. National Labor Relations Board, 91 F. (2d) 134, 139 ( C. C. A. 4th ), cert. den. 302 U. S. 731, arid National Labor Relations Board v. Carlisle Lumber Company, 94 F. (2d ) 138, 145 (C. C. A. 9th), cert. den . 8 04 U S. 575. WILLIAMS COAL COMPANY ET AL. 625 the part of the respondent's employees which otherwise might have arisen in the period preceding the Act and have accomplished a change in these organizations from employer-established-and-main- tained unions into freely chosen ones, necessarily was anticipated and stifled by the continuing force of the closed-shop provision and the other employer compulsions above mentioned.84 After the passage of the Act no steps were taken by the respond- ent or by any other person to remove from these organizations, so far as the respondent's employees were concerned, their taint as organizations established, maintained, and assisted by practices characterized in the Act as unfair. Accordingly, the continuation in force at the mine on and after July 5, 1935, of the closed-shop provision contained in the agreement of April 1, 1934, as renewed June 20, 1935, between The Operators' Association and the I. M. U.85 was not sanctioned by the proviso to Section 8 (3) of the Act.se It follows that the fostering of the I. M. U. and the local, the domina- tion of and interference with their administration, and the support to these organizations, in which the respondent was found to have engaged subsequent to the Act, were not protected during the life of this agreement, by a closed-shop provision valid under Section 8 (3). Nor was such fostering, domination, interference, and sup- port which occurred after the termination of this agreement pro- tected by the closed-shop provision in the succeeding agreement of November 14, 1936, bet-,Veen The Operators' Association and the I. M. U.87 So far as the respondent and its employees were con- cerned, this agreement with its provision for a closed shop to which the respondent was bound as a party through the agency of The ,Operators' Association, 88 was not merely an agreement with and in behalf of labor organizations established, maintained, and assisted by action defined as an unfair labor practice, but, to the. extent that ° k It is doubtful whether acts of the employees or of anyone else , even in the absence of-the closed-shop provision and other coercion, .could have relieved the I . M. U. and the local of their taint as employer -established organizations Cf Consolidated Edison Com- pany -etc at al. v National Labor Relations Board at al., 59 S. Ct. 206, where the United States Supreme Court stated , per Chief Justice Hughes : The continued existence of a company union established by unfair labor prac- tices . . . Is a consequence . . . whose ., continuance thwarts the purposes of the Act... - - - 8° See Section III A, supra. 86 While the proviso to section 8 (3) refers to "making" of a closed-shop contract, the proviso is to be construed as applying to contracts made before the Act and continuing -thereafter See Senate Report No. 573, 74th Cong, 1st Sess. (1935) pp. 11-12, where, in connection with a discussion of the proviso to Section 8 (3) It was said : And of course-it is clear that no agreement heretofore made could give validity to the practices herein prohibited by Section 8 , 87 See Section III A, and III B 4, supra. H It-is; of course, immateiial that the respondent -did not itself make the agreement -directly with the I. M. U. and the local concerning its relations with its employees, but , -did so through the agency and instrumentality of The Operators ' Association 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent after the Act continued its domination, interference, and support, was an agreement with and in behalf of labor organiza- tions maintained and assisted directly by acts constituting unfair labor practices. As noted heretofore with respect to a similar situation in the Wil- liams Coal Company case, the imposition of a check-off that is subse- quent' to the Act, could not have been excused by the proviso to Section 8 (3). The proviso does not cover the coerced imposition and maintenance of a check-off as a condition of employment 89 The maintenance of the check-off after the Act constituted an inde- pendent unfair labor practice under Section 8 (3) of the Act, was support to the I. M. U. and the local within the meaning of Section 8 (2), and involved maintenance and assistance to these organiza- tions within the meaning of the proviso to Section 8 (3). We find that the respondent, Reinecke Coal Mining Company, from and after July 5, 1935, dominated and interfered with the ad- ministration of the local of the I. M. U. at its mine, and contributed support to it and to the I. M. U.; that in and by such acts, and each of them, the respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Discrimination as to terms and conditions of employment and the discharges of 1937 The respondent, as shown above, on and after July 5, 1935, re- quired of its employees, both old and new, as it theretofore had required of them, that they be members of the I. M. U. and the I. M. U. local, acquiesce in and agree to the continuance of the check- off to the I. M. U. and the local, and remain bound to the I. M. U. agreements, in order to retain their employment with the respondent. John Bowles was discharged by the respondent on February 15, 1937. He had worked at the mine for 4 years. On the day preced- ing the discharge, he attended the meeting of the local heretofore mentioned, at which an oath of loyalty to the I. M. U. was ad- ministered. Bowles, however, refused to take the obligation. He told East, the field organizer, who gave the oath, that he would not raise his hand, and did not do so. On the morning of the discharge, Fent Overall, brother of the respondent's general manager, told Bowles that he was required to take the oath. Bowles repeated that he would not do so, and proceeded to argue against the I. M. U. and in favor of the U. M. W. A. as a labor organization. Overall then stated that he would "see" that Bowles was discharged that night. 89 See Section III B 4 and 5, Supra. WILLIAMS COAL COMPANY ET AL. 627 A few minutes before the workday of February 15 ended, Bowles was asked by one of the motormen to ascertain whether the track in the mine was clear for bringing in some cars. Bowles apparently failed to do this, because of the proximity of closing time, and the motorman did not take the cars far into the mine. Thereafter Bowles was discharged by the mine superintendent, Braun. Braun referred to the fact that the cars had not been taken into the mine, and added, "You have been talking about these unions too, so I am going to let you go." Bowles testified that there was nothing un- usual in cars not being brought deep into the mine. The mine superintendent did not testify. However, the motor- man was called as a witness by the respondent and stated that Bowles was discharged for failure to advise him that the track was clear. He further testified that he did not "remember" saying anything to Bowles about the matter when it occurred. We are convinced that the effective cause of Bowles' discharge was his refusal to remain loyal to the I. M. U. and his assistance to the U. M. W. A. Bowles' open unwillingness to take the I. M. U. oath, and his advocacy of the U. M. W. A., on the day of his discharge, coupled with Overall's warning and the mine superintendent's re- mark about Bowles' "talking about these unions," point to the true reason for the dismissal. We are satisfied that the coincidental fail- ure, if any, of Bowles to make the investigation of the track, was an occurrence of little consequence. We find that the respondent discharged Bowles because of his refusal to remain loyal to the I. M. U. and his assistance to the U. M. W. A. At the time of his discharge, Bowles was earning $4.20 a day and worked 4 or 5 days a week. He has since earned $100 at irregular work. Henry Hodge was discharged by the respondent on June 9, 1937. He first was employed at the mine in 1889 and worked there at va- rious times thereafter. His last employment with the respondent began on March 1, 1936. The record shows that after his reemployment Hodge sought to make the I. M. U. local an effective organization. He became vice president of the local, served on committees, and was active at local meetings in raising issues concerning the respondent's failure to perform provisions of the I. M. U. contract. In his talks at meet- ings he would refer to a "union man," meaning inferentially a mem- ber of the U. M. W. A. About a week preceding his discharge, Hodge -announced at a meeting of the" local that he "was a union man and didn't care-who knowed it." At that time he was a mem- ber of the U. M. . W. A. Hodge was' discharged by his foreman. After the dismissal, Hodge went to the general manager, Overall, to inquire the reason, 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and was told by Overall, that Nance had notified the respondent to discharge Hodge for disloyalty to the I. M. U. Thereafter, Nance stated to Hodge that his membership in the I. M. U. had been re- voked because, among other things, Hodge had asserted that the I. M. U. was not a "bona fide" labor organization. We are of the opinion that the respondent discharged Hodge be- cause he was a member of the U. M. W. A. and had sought to release the local of the I. M. U. from the respondent's domination,90 and because he refused to be loyal to the I. M. U. We have no doubt that his disclosure in the week preceding the discharge of his affilia- tion with the U. M. W. A. became known to the respondent. We accordingly find that the respondent discharged Hodge be- cause of his membership in the U. M. W. A. and his desire to free the local from employer domination, and because of his refusal to remain loyal to the I. M. U. In 1937 Hodge was paid an average weekly wage of $14.22. Since his discharge he earned $2.25. William Hamilton was discharged by the respondent on June 14, 1937. He was a member of the U. M. W. A. Shortly before the discharge he had engaged in soliciting memberships for the U. M. W. A. among the mine employees. Hamilton was told by Overall, the general manager, that the reason for his dismissal was the revo- cation of his membership in the I. M. U. by Nance. Nance informed Hamilton that his U. M. W. A. activities had occasioned the revocation. We find that the respondent discharged Hamilton because of his activities in behalf of the U: M. W. A. and his disloyalty to the I. M. U. At the time of his discharge Hamilton earned $4 per day and worked 4 or 5 days a week. He since has earned $2.25. Jim Stone was discharged by the general manager, Overall, on June 30, 1937. He joined the U. M. W. A. in May 1937, and there- after solicited the respondent's employees to become members of that organization. At the time of the discharge, Overall disclosed to Stone a letter from Nance to the effect that Stone was not "loyal" to the I. M. U. Nance told Stone that his I. M. U. membership had been terminated because he belonged to the U. M. W. A. We find that the respondent discharged Stone because of his mem- bership in and activities for the U. M. W. A. and his refusal to be loyal to the I. M. U. At the time of his discharge Stone earned be- tween $25 and $30 weekly. Since that time he has earned $5. Robert Jordan also was discharged by the respondent on June 30. He was a member of the U. M. W. A. On June 30 he received a written notification from the respondent stating that he had been discharged ° National Labor Relations Board v. American Potash and Chemical Company, 98 F. (2d) 488 (C. C. A. 2d). WILLIAMS COAL COMPANY ET AL. 629 because his I. M. U. membership had been revoked. Thereafter Over- all likewise revealed to him a letter from Nance, which requested the -dismissal of Jordan and Stone because they were members of the U. M. W. A. and their membership in the I. M. U. had been revoked. Nance told Jordan that he, Nance, "would fire every damn one ... that joined the United Mine Workers." We find that the respondent discharged Jordan because of his mem- bership in the U. M. W. A. and disloyalty to the I. M. U. At the time of his discharge, Jordan was earning $10 per week. Since then he has earned between $10 and $12. We find that the respondent, Reinecke Coal Mining Company, in requiring as a condition of employment on and after July 5, 1935, that its employees be and remain members of the I. M. U. and the I. M. U. local, acquiesce in and agree to the continuance of the check- off to the I. M. U. and the I. M. U. local, bind themselves and remain bound to the I. M. U. agreements with The Operators' Association, and refrain from joining any labor organization other than the I. M. U., discriminated in regard to the terms and conditions of the employment of its employees, thereby encouraging membership in the I. M. U. and the I. M. U. local and discouraging membership in any other labor organization, including the U. M. W. A.9' We further find that said respondent, in and by discharging John Bowles, Henry Hodge, William Hamilton, Jim Stone, and Robert Jordan, and each of them, discriminated in regard to the hire and tenure of employment of its employees, thereby encouraging member- ship ins the I. M. U. and discouraging membership in any other labor organization, including the U. M. W. A. We further find that said respondent, in and by said discrimination in regard to the terms and conditions of employment of its employees, and their hire and tenure of employment, has interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 3. The alleged refusal of the respondent in 1937 to bargain collectively with the U. M. W. A. On June 9, 1937, the U. M. W. A. made written request of the re- -spondent that the respondent bargain collectively with the U. M. W. A. as representative of the employees at the respondent's mine. Pursuing the same tactic as that followed by the employer in the Williams Coal 61 As stated above, in Section III C 1, these requirements imposed by the respondent, and otherwise enforced as a condition of employment at the mine could not be protected by the closed-shop provision in the agreements between the I. M. U and The Operators' Association , in force on and after July 5, 1935 , for the closed shop itself was not sanc- tioned by the proviso to Section 8 (3) of the Act. See also Section III B 4 and III B 5, supra. 164275-39-vol. x[-41 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company case, the respondent made no reply. At the hearing, certain membership and application cards of the U. M. W. A. signed by em- ployees were introduced into evidence to establish the status of the U. M. W. A. as bargaining representative at the time of its afore- mentioned request.92 This proof, however, was subject to it ruling of the Trial Examiner similar to that made in the case of the Williams Coal Company, that the cards were not to be made available for inspection by the respondent. The reason was the same as that in the Williams Coal Company case. Accordingly, we will not deter- mine the issue whether the respondent refused to bargain collectively with the U. M. W. A. in 1937. The amended complaint in this respect will be dismissed 93 without prejudice. D. Grapevine Coal Company-The unfair labor practices 1. Domination of and interference with the administration of the local of the I. M. U. and support to the local and the I. M. U. The respondent, Grapevine Coal Company, like the Reinecke Coal Mining Company, has been a member of The Operators ' Association for several years. In June and July 1933 , acting through the Associa- tion and in concert with other member operators, it sponsored and promoted the formation of the I. M. U. At that time there existed at the respondent's mine a newly created local of the U. M. W. A. which had come into being upon the enactment by the Congress in June of the National Industrial Recovery Acts4 The local had been successful in enrolling as members approximately three -fourths of the re- spondent's employees. It elected officers and duly constituted a collec- tive bargaining committee. Within a month after the formation of the I. M. U., a local of that organization was set up for employees at the respondent 's mine. In the middle of July 1933 , petitions, in form heretofore described,95 were circulated around the mine and signatures of employees solic- ited. These petitions set forth, as above-mentioned , a pledge of allegiance to the I. M. U., and a request that a meeting be arranged with the coal operators to negotiate a collective bargaining contract. One of the petitions, somewhat differently worded , specifically adverted to the operators as the "coal operators in the West Kentucky field." About 55 signatures were obtained. An employee who later became the first president of the local testified that when he signed the petition he "had understood from the Operators that they were 82 Board Exhibit No. 33. °S See Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 23, 10 N. L. R. B. 88. 14 See footnote 10. 15 See Section III A, supra. WILLIAMS COAL COMPANY ET AL. 631 going to form this organization." Another employee who became chairman of the first pit committee of the local testified that his signature was obtained in the mine by a managerial employee, one Phaup, •the entry boss, who informed him that "they had a union they wanted me to join." On August 1, 1933, at a meeting attended by a group of employees variously estimated as numbering from 15 to 75, the local was formed, the obligation to the I. M. U. ad- ministered, and officers elected. On August 10, 1933, the first agreement between The Operators' Association and the I. M. U. was entered into, effective as of August 1, and providing for a closed shop at the respective mines of the member Operators.9e There is no showing that at that time a major- ity of the respondent's employees were members of the I. M. U., and we are satisfied from the record that the I. M. U. did not then represent such a majority.97 In September 1933 the U. M. W. A. local at the respondent's mine requested the respondent to bargain collectively with it. The local represented about 134 of the approximately 180 employees, that is, a substantial majority. However, the respondent refused to nego- tiate with the U. M. W. A. It would not agree to meet with the U. M. W. A. Upon receiving the request it promptly closed its mine and kept it closed and the employees locked out for a period of 46 days. At the hearing no explanation of the shut-down was offered by the respondent, although there is some evidence that there was work to be done at the mine. We are convinced, and find, that the closing of the mine was occasioned by the request of the U. M. W. A. for collective bargaining, that in shutting down the mine the respondent employed the familiar tactic of a lock-out to discourage union activities.98 In the middle of November 1933, the respondent notified the U. M. W. A. local that the mine would open the succeeding day and that the employees could then return to work without having "to sign anything." However, on the day after the; (resumption of work, the entry boss, Phaup, and the mine foreman, one Myers, went through the mine and requested employees to sign a cut-off sheet 99 for the I. M. U. A number of the employees refused to sign, and 86 See Section III A, supra. ar The various witnesses who testified on this subject in behalf of the intervenor, the I. M. U, stated merely that a "substantial number" of the employees had signed the peti- tion or were members prior to August 10, 1933. At the first meeting of the I. M. U. local on August 1, 1933, the number of employees present and who took the "obligation" was estimated, as being between 15 and 75. As late as November 1933, the U. M. W. A. local still had a substantial majority of the employees as members. 6s Matter of Ford A. Smith et al. and National Furniture Workers, Local No. 3, 1 N. L. R. B. 950; National Labor Relations Board v. Hopwood Retinning Company, etc., 98 F. (2d) 97 (C. C. A. 2d). "Some of the witnesses referred to this paper as an I . M. U. petition or paper. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the following'morning 23 of those who had so refused were not permitted to enter the mine but were assembled together to hear the general manager of the mine, one , Hayes.- Hayes informed these men that the respondent required all employees to sign the I. M. U. cut-off sheet as a condition of employment. He stated that the "N. R. A." had granted the right to organize but the respondent had chosen • the I. M. U., that the respondent had made a, contract with the I. M. U. Employees who declined to sign were not permitted to work. The cut-off sheet in question 'authorized the respondent to check off dues to the I. M U. It is apparent from the record that by signing the cut-off sheet an employee -was considered to affiliate 100 himself with the I. M. U. and, in- consequence,- to become bound by the contract which the I. M. U. had made with The Opera- tors' Association 101 Thus, in November 1933, employees at the respondent's mine who had not already joined - the I. M. U. were coerced into becoming members of that organization and of the I. M. U. local, and all employees were required to authorize a check- off of dues to these 'organizations. In becoming members of the I. M. U., the employees bound themselves to the terms of the I. M. U. agreement of August 10. - At all times since November 1933, the respondent, through ad- herence to the closed-shop provision contained in the successive agreements between The Operators' Association and the I. M. U.'102 has required of its employees as a condition of employment that they retain their memberships in the I. M. U. and the local. Similarly, throughout this period the employees have been constrained to ac- quiesce in a continuance of the check-off, because of the respondent's persistence in making dues deductions without removing the original compulsion. In this fashion substantial amounts of money have been transmitted by the respondent to the I. M. U. and the I. M. U. local. By virtue of their coerced membership in the I. M. U. and otherwise, the industrial relations of these employees at all times have been governed, so far as the respondent was concerned, by the provisions of the successive I. M. U. agreements in regard to work- ing conditions and manner of concerted action and organization. Persons newly employed at the mine since November 1933 have been subject to the same terms and conditions of employment regarding the I. M. U. as all other employees and were, in addition, compelled to pay an initiation fee to the I. M. U. In 1937, as more particularly set forth below, the respondent again locked out its employees when "'The matter of "obligated" and "non-obligated" membership in the I. M. U. Is dis- cussed above; see footnote 52. 101 The I. M. U. contract of August 10, 1933, was expressly binding upon the I. 1%1. U. membership. 107 See Section III A, supra; see also footnotes 14 and 16. WILLIAMS COAL COMPANY ET AL. 633 requested to bargain collectively by the U. M. W." A. and, although given proof that the U. M. W. A. represented a majority of the employees in an appropriate unit, continued to keep them locked out. At the same time it refused to bargain collectively with the U. M. W. A. and stated that it proposed to continue operations under the 1. M. U. agreement. " - - Meetings of the I. M. U. local have been poorly attended ; only from 10 to 30 employees are regularly present. To stimulate at tendance the I. M. U. at various times announced that a fine would be imposed for non-attendance, and the son of one of the foremen threatened employees with the imposition of such fines. As stated below, in 1937 a majority of the employees notified the respondent that they were no longer members of the I. M. U. and directed it to cease checking off dues to that organization. It is clear that in the period from July to November 1933, the respondent, acting individually and through The Operators' Associ- ation, instigated, fostered, dominated, and interfered with the forma- tion of the I. M. U. local at its mine. The respondent, in conjunc- tion with the other mine operators, created the parent organization and induced Nance's cooperation in establishing the locals. Dur- ing the formative period of the local the respondent favored the local by refusing to meet or bargain with a competing labor or- ganization representing a majority of its employees; locked out the employees when the competing labor organization requested col- lective bargaining; preferred the I. M. U. by making an exclusive closed-shop agreement with it through The Operators' Association at a time when the competing labor organization alone represented a substantial majority of the employees; required in November 1933, in pursuance of the I. M. U. agreement, that all employees affiliate themselves with the employer-created I. M. U., thereby binding themselves to the I. M. U. agreement; compelled employees to au- thorize a check-off of dues to the I. M. U.; refused to permit em- ployees who sought work but would not comply, to enter the mine, and engaged in other like acts 103 At all times since November 1933, the respondent in various ways dominated, interfered with, and supported the local of the I. M. U. and its administration. The respondent has required all employees to continue their membership in the I. M. U., and, accordingly, in the local, as a condition of employment, and persisted in this re- quirement even after a majority of the employees in 1937 refused to remain members of the I. M. U. but joined the U. M. W. A. It limited the activities of the local as a labor organization in important respects, through the provisions of the successive agreements made 103 Cf. case of Reinecke Coal Mining Company 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by The Operators' Association, acting for itself and as agent for the respondent with the Association's and the respondent's own creature, the I. M. U., which agreements the employees were com- pelled to accept through the respondent's adherence to the closed shop.104 As set forth- below; it locked out its employees in 1937 following a request by the U. M. W. A. for collective bargaining and refused to treat with that organization although a majority of its employees were members. The respondent also has supported the I. M. U. since its formation in numerous respects. The respondent encouraged and compelled its employees to become members and at all times has required them to remain such members as a condition of employment, irrespective of whether a majority of the employees joined a competing labor or- ganization. It locked out its employees both before and after the Act when a majority sought to be represented by such competing labor organization, and in 1937 refused to bargain collectively with the competing labor organization, although a majority of the employees in an appropriate unit designated it their representative for such purpose. It compelled acquiescence in the check-off, at all times until May 1937, and in accordance therewith deducted and transmit- ted sums of money to the I. M. U. As stated heretofore in connection with the Reinecke Coal Mining Company case, the acts of an employer, prior to the Act, of domina- tion, interference, and support in relation to a labor organization while not constituting unfair labor practices under the Act, never- theless are of relevance in determining whether the continuance of such domination, interference, and support, or any part thereof, after the enactment of the Act, in view of an outstanding closed- shop agreement, was sanctioned by the proviso to Section 8 (3). It is evident that at the time the Act became effective, the I. M. U. and the local of the I. M. U. at the respondent's mine were labor or- ganizations established, maintained, and assisted,by action defined in the Act as unfair labor practices 105 As far as the respondent's 104 See cases of Williams Coal Company and Reinecke Coal Mining Company, Section III B 4 and Section III C 1, supra. 101 The I. M. U. and the local of the I. M. U. were established, maintained, and assisted prior to the Act, by action of the respondent defined in subdivisions (1), (2), and (3) of Section 8 of the Act as unfair labor practices, as follows : Acts of the respondent in concert with, and through the agency of The Operators' Association to instigate, promote, and support the formation of the I. M U. ; in fostering the formation of the local ; in showing disfavor toward a competing labor organization which represented a majority of the respondent's employees, by refusing to meet or bargain collectively with such organiza- tion, by locking out employees after such request was made, and by other acts ; in com- pelling the respondent's employees as a condition of hire and tenure of employment to become and remain members of the I. M. U., and of the local, which the respondent itself and acting through the Association had established for such purpose ; in prohibiting the employees from joining a labor organization not created by the respondent ; in coercing employees into accepting a check-off to labor organizations created by the respondent; and other acts. WILLIAMS COAL COMPANY ET AL. 635 employees were concerned, these organizations then constituted, be- cause of the continuous effect of the closed-shop provision and other employer compulsions, labor organizations whose formation and ad- ministration had been or were dominated, interfered with, and sup- ported by action defined as unfair labor practices. What has been said above in regard to the similar situation presented concerning the I. M. U. and the local of the I. M. U. in the case of the Reinecke Coal Mining Company mine is applicable here and will not be restated. The maintenance of the respondent's fostering and dom- ination of, and interference with, the I. M. U. and the I. M. U. local, and with their administration, as well as its support to these or- ganizations, on and after July 5, 1935, were not protected by an applicable closed-shop provision, valid after that date, either in the agreement between The Operators' Association and the I. M. U., of April 1, 1934, as renewed June 20, 1935, or in the agreement be- tween them of November 14, 1936. The provision for a closed shop in the agreement of November 14, 1936, in so far as the respondent and its employees were concerned, was, as above observed in con- nection with similar facts in the Reinecke Coal Mining Company case'106 made with and in behalf of labor organizations established, maintained, and assisted by action defined as unfair labor practices and organizations maintained and assisted by unfair labor prac- tices.107 Also, as there pointed out, the imposition of the check-off as a condition of employment on and after July 5, was not per- mitted by but constituted maintenance and assistance within the meaning of the proviso to Section 8 (3).108 We find that the respondent, Grapevine Coal Company, from and after July 5, 1935, dominated and interfered with the administration of the local of the I. M. U. at its mine, and contributed support to it and to the I. M. U.; that in and by such acts, and each of them, the respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Discrimination as to terms and conditions of employment, and the lock-out of 1937 As stated above, after July 5, 1935, the respondent adhered to its requirement that all employees, as a condition of employment, retain their affiliation with the I. M. U. and the I. M. U. local, and accept the check-off of dues to these organizations. 108 See Section III C 1 , supra. 101 Ibid. 108 Ibid. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About May 1937, a substantial number of the employees at the mine became members of the U. M. W. A. and organized themselves into a U. M. W. A. local, with local officers and committees. On May 21 the U. M. W. A., acting in behalf of these employees, re- quested the respondent, as more fully described below, to bargain collectively with it concerning wages, hours, and other working con- ditions of the employees at the mine. On or about May 22 the re- spondent shut down its mine, which still remained closed at the time of the hearing. Thereafter, on May 24, the respondent replied by letter to the request of the U. M. W. A. for collective bargaining, professing unawareness as to whether a majority of its employees had joined the U. M. W. A. and making reference to the existing agreement between it and the 1. M. U. which, it was stated, would not expire until July 1938. On June 8 or 9 the local of the U. M. W. A., to afford evi- dence of the U. M. W. A.'s majority representation of employees within an appropriate bargaining unit,los presented the respondent with a petition addressed to it and signed by a majority of the employees stating that the subscribers thereto were no longer mem- bers of the I. M. U. and that they had joined the U. M. W. A. The petition requested the respondent to refrain in the future from check- ing off dues to the I. M. U. and the I. M. U. local from wages of the subscribers. The answer of the respondent to the petition was, "When we do start work we are going to continue with the I. M. U. contract." At or about the same time the respondent, through Phaup, the entry boss, requested the mine employees to sign a certain document renewing their allegiance to the I. M. U. and acknowledging them- selves "bound as individual members by the contract between The Operators' Association and the Independent Miners Union until it expires on July 1, 1938." Phaup visited employees at their homes, inquired whether they wanted to work, and upon being answered in the affirmative, told them to sign the document. However, only 12 employees would sign. On June 29 the U. M. W. A. again requested the respondent to arrange a meeting for collective bargaining. The respondent never replied, and in its answer herein, admits that on and after May 21 it refused to meet and negotiate with the U. M. W. A. as representa- tive of its employees. At the hearing the contention was made by the respondent that the closing of the mine was induced by poor marketing conditions prevailing in the summer months of 1937. The general manager, Hayes, testified that the mine had been operating only two days a 109 The appropriate unit is set forth in Section III D 3, infra. WILLIAMS COAL COMPANY ET AL. 637 week at the time of the shut-down and had sustained an operating deficit during the preceding 2 or 3 months. However, he also testi- fied that the mine operated at a deficit every summer, and he "couldn't say" when he had closed down prior to 1937 because of market conditions. We are convinced that the primary if not sole ground for the respondent's closing of its mine on or about May 22, 1937, and the shut-down thereafter, was its intent and desire to effectuate, through the intimidating force of a lock-out a discouragement of member- ship and activities of all its employees in the U. M. W. A. and the U. M. W. A. local, the defeat of those organizations, and frustration of the wishes of those employees who in joining the U. M. W. A. sought representation through it. The shut-down occurred in prompt response to the request of the U. M. W. A. for collective bargaining. Although the respondent was obligated under the Act, on and after June 29, as hereinafter set forth,110 to meet and bargain collectively with the U. M. W. A. as the exclusive representative of its em- ployees, the respondent refused to bargain. Its response of May 24 to the U. M. W. A. must be read in the light of the surrounding circumstances and its subsequent acts and conduct. When confronted with irrefutable proof of the wishes of the employees as expressed in the June 9 petition, the respondent avowed its adherence to the I. M. U. contract, which was without legal validity 111 and took steps 112 to induce the employees, in consideration of a reopening of the mine, to acknowledge membership in the I. M. U. and obligation under the I. M. U. contract. It is plain, moreover, in view of what has heretofore been found, that the respondent's locking out of its employees, and the continuance of such lock-out were not justified either by the agreement of November 14, 1936, between The Operators' Association and the I. M. U., or by the fact that prior to May 21 the respondent checked off the dues of all employees to the I. M. U. and the I. M. U. local. The provisions for a closed shop contained in the November 14 agreement, in so far as it concerned the respondent and its employees, did not meet the require- ments of the proviso to Section 8 (3) of the Act and consequently was invalid.113 Indeed, the agreement as a whole, in so far as it related to the respondent and its employees, was invalid, for the reason that it was made with and in behalf of labor organizations which were the u0 See Section III D 3 (3), infra. In This matter is discussed below. ua The attempt of the respondent through Phaup to persuade the employees in effect to pledge allegiance to the I. M. U. and in effect renounce the U. M. W. A., constituted an interference with the right to self-organization, within the meaning of Section 8 (1) of the Act. 118 See Secilon III C 1 and III D 1, supra and footnote 81. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD beneficiaries of the respondent's illegal support 114 and other acts. The check-off to the I. M. U. and the I. M. U. local were similarly unlawful, because made pursuant to a requirement, as found below, constituting a discrimination as to terms and conditions of employ- ment. We find that the respondent, Grapevine Coal Company, in requiring as a condition of employment that its employees be and remain mem- bers of the I. M. U. and I. M. U. local, authorize or otherwise acquiesce in a check-off of dues to those organizations, and refrain from joining any other labor organization; and, further, in requiring as a condition to a reopening of the mine after May 22,1937, that the employees renew their allegiance to the I. M. U. and acknowledge themselves bound to the I. M. U. contract, discriminated in regard to the terms and condi- tions of the employment of its employees, thereby encouraging mem- bership in the I. M. U. and discouraging membership in any other labor organization, including the U. M. W. A. We further find that said respondent, in closing its mine on or about May 22, 1937, and keeping it closed thereafter, thus locking out its employees during said period, discriminated 115 in regard to the hire and tenure of all its employees,118 thereby encouraging membership in the I. M. U. and discouraging membership in any other labor organiza- tion, including the U. M. W. A. We further find that said respondent, in and by said discrimination in regard to the terms and conditions of employment of its employees, and their hire and tenure of employment, has interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed by Section 7 of the Act. 3. The refusal to bargain collectively (1) The appropriate unit The complaint against the respondent alleged, and its answer ad- mitted, that all of the respondent's mining employees, excluding fore- men, bosses, and other supervisory employees, technical help, the u* See Section III D 1, supra. Matter of Hill Bus Company, Inc. and Brotherhood of Railroad Trainmen, Rockland Lodge No. 829, Spring Valley, New York, 2 N. L. R. B. 781; Mater of McKaig-Hatch Inc. and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No. 1139, 10 N. L. R. B. 33; Cf. Matter of Pacific Greyhound Lines and Brotherhood of Locomotive Firemen and Enginemen, 4 N. L. R. B. 520, 533; also Matter of Pacific Greyhound Lines and Amalgamated Association of Street, Electric Railway, and Motor Coach Employees of America, 9 N. L R. B. 557, 570. iii National Labor Relations Board v. Hopwood Retinning Company, etc., 98 F. (2d) 97 (C. C. A. 2d). 116 The discrimination was against all employees , not merely those who joined the U. M. W. A., and accordingly, the Order below will make provision for all employees. National Labor Relations Board v. Biles-Coleman Lumber Company, 98 F. (2d) 18, 23 (C. C. A. 8th) ; Santa Cruz Fruit Packing Company v . National Labor Relations Board, 91 F. (2d) 790 (C C. A. 9th), enforcing 1 N. L. R. B. 454. WILLIAMS COAL COMPANY ET AL. 639 clerical force, and company executives, constitute a unit appropriate for the purposes of collective bargaining. We find that at all times material herein, the mining employees of the respondent, excluding foremen, bosses, and other supervisory em- ployees, technical help, the clerical force, and company executives, constituted and constitute a unit appropriate for purposes of collective bargaining, and that said unit insures and will insure to the employees the full benefit of their right to self-organization and to collective bargaining, and otherwise will effectuate the policies of the Act. (2) Representation by the U. M. W. A. in 1937 of a majority in the appropriate unit At the time of the closing of the mine in May 1937 the respondent employed 197 persons in the unit above found appropriate .1117 As heretofore set forth, on or before June 8 or 9, 1937, the mine employees signed a petition declaring, among other things, that they were mem- bers of the U. M. W. A. This petition was introduced into evidence without challenge by the respondent or any one else as to its authen- ticity or to the accuracy of the statement therein contained. A com- parison of the names on the petition with those on the May 31, 1937, pay roll establishes that by June 9, 1937, at least 104 of the 197 indi- viduals within the appropriate unit, that is, a maj ority of such indi- viduals, employed by the respondent on May 31, 1937, and whose work had ceased as a consequence of and in connection with the lock-out of May 22, 1937, were members of the U. M. W. A. By their membership these employees 118 designated the U. M. W. A. as their representative for collective bargaining.119 There also was introduced into evidence, upon agreement of the parties, a certain list 120 setting forth the names of various persons and the respective dates upon which they signed certain cards designating four named representatives of the U. M. W. A. in their behalf as their representatives for collective bargaining.121 117 The respondent's pay roll of May 31, 1937 , was introduced in evidence. The respond- ent stipulated that the names thereon constituted the names of all employees on its pay roll of May 21, 1937 , within the appropriate unit. The pay roll lists the names of 199 employees. However, two names are duplications. vs All of these 197 employees remained "employees" after the lock-out, within the meaning of, and for the purposes of, the Act. Section 2 (3) of the Act. See National Labor Relations Board v. Mackay Radio and Telegraph Co., 304 U. S. 333. Matter of Trenton-Philadelphia Coach Company and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 6 N. L. R. B. 112, 121, and cases there cited. 120 The cards for which this list was substituted were originally introduced into evi- dence and made available for inspection by the respondent and other parties. All cards were of identical statement. Their authenticity was not questioned by anyone The Trial Examiner stated for the record that he studied them, was of the opinion that they were properly signed, that there was no apparent evidence of forgery as to the individuals who executed the cards, or to the persons who signed as a witness to the execution. 121 The cards also recited the desire of the signatories to join the United Mine Workers of America, the international labor organization with which the U. M. W. A. Is affiliated. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A comparison of the names upon this list with those on the respondent's pay roll of May 31, 1937, shows that on and by Jude 29, 1937, at least 108 of the 197 employees within the appropriate unit locked out on May 22,1937, designated the above representatives of the U. M. W. A. as their representative for collective bargaining. These represen- tatives and the U. M. W. A. remained thereafter such bargaining representative. We find that on June 29, 1937, and at all times thereafter the U. M. W. A. and its representatives acting in its behalf, were the duly designated representative of a majority of the employees in the appropriate unit for purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, were the exclusive representa- tive of all the employees in such unit for purposes of collective bargaining. (3) The refusal to bargain As heretofore stated, on May 21, 1937, the U. M. W. A. by letter requested the respondent to bargain collectively with it as repre- sentative of the respondent's employees. The letter stated that a majority of the employees were members of the U. M. W. A., that they had chosen the representatives of the U. M. W. A. to represent them in collective bargaining, and requested a meeting for such purpose to be held at the respondent's convenience between May 22 and 28, 1937. On or about May 22 the mine shut down. On May 24 the respondent, as heretofore mentioned, replied to the U. M. W. A. Its reply was as follows : We received your communication of May 21, stating that 51 per cent of employees at our mines are now members of the U. M. W. A. If this statement be correct, it is news to us, for the reason that on our last pay day, the 15th, all employees of that date were checked off for dues to the I. M. U., under contract similar to those in effect for nearly four years. We wish to state that the Management of the Grapevine Coal Company is in full sympathy with the Wagner Act, also the Guffey Coal Act, as evidenced by our policies in conformity with the same and former regulations. Recently we bargained collectively with the I. M. U. conform- ing to the New York April conference in the wage increase. Our present contract with the I. M. U. does not expire until July, 1938, and we do not see how it can be abrogated even if what you say is true. On June 8 or 9 the respondent was presented with the petition above described, signed by a majority of the employees in the appro- WILLIAMS COAL COMPANY ET A.L. 641 priate unit and affirming their membership in the U. M. W. A. To this the respondent replied, "When we do start work that we are going to continue with the I. M. U. contract." On June 29 the U. M. W. A., through its president, answered the respondent's letter of May 24, in part as follows : I have been informed by members of the Local Union at your mine that they recently furnished you with a list of names of men employed at your mine stating that they were now mem- bers of the United Mine Workers of America, and that you should not deduct any more dues from their pay roll for the I. M. U. organization. If this is true then there should be no longer any doubt in your mind as to my statement in my letter of May 21, that 51 percent of your employees had joined the United Mine Workers of America. We are pleased to have the statement from you that your Coal Company is in full sympathy with the Wagner Act, also the Guffey Coal Act. If you are sincere in this last statement I would be glad to meet with you at a time and place convenient with you to talk over this question, that we may be better able to understand one another. The respondent never answered this letter or undertook to meet with the U. M. W. A.122 In its answer herein the respondent admits the allegations of the complaint against it that on May 21 and at all times thereafter it refused to meet and negotiate with the U. M. W. A. as the representative of a majority of the employees in the appropriate unit. This refusal was not justified by the agreement of November 14, 1936, between The Operators' Association and the I. M. U., nor by the check-off of dues to the I. M. U. and the I. M. U. local prior to the shut-down. The reasons expressed above as explaining that such agreement and check-off dfd not justify or excuse the lock-out support the same conclusion here.123 Nor was the respondent relieved of its duty to bargain collectively by the occurrence of the lock-out.124 We find that on or about June 29, 1937, and thereafter, the re- spondent, Grapevine Coal Company, refused to bargain collectively with the U. M. W. A. as the representative of its employees in re- spect to rates of pay, wages, hours of employment, and other condi- tions of employment, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. 122 Cf. Matter of Somerset Shoe Company and United Shoe Workers of America, 5 N. L. R. B 486 12s See Section III D 2, supra. 124 Matter of Kochne Manufacturing Company and Local No. 1791, United Brot herhood of Carpenters and Joiners of America, 7 N L. R. B. 304 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Sixth Vein Coal Corporation-The unfair labor practices 1. Interference with the right to bargain collectively and the strike of 1936 On October 8, 1935, the respondent, Sixth Vein Coal Corporation, and the U. M. W. A. entered into an agreement providing for wages, hours, and working conditions of employees at the respondent's mine.. At that time all of the employees at the mine were members of the U. M. W. A. and were organized into a U. M. W. A. local.125 In the middle of March 1936 the respondent closed a section of its mine called the Third East Entry, which had been "worked out to the property line," and "laid off" 40 or 50 employees working there. Whether the "lay-off" was in fact a discharge, or only a termination of work for an indeterminate period, is unclear. The Entry has since remained closed and a substantial number of the employees laid off have never been recalled to work. Shortly after the lay-off a com- mittee of the U. M. W. A. met with the superintendent of the mine, one Blanchard, to determine whether the available work might be divided among all the employees, including those laid off. Although an agreement to divide the work was reached, it was abandoned by the respondent a day later, assertedly because of difficulty in carry- ing on operations on a share-the-work basis. During the course of the meeting with the committee Blanchard adverted to the wage rate paid under the agreement of October 8 and stated that he did not think it would be possible for the respondent to pay its employees at that rate. He asked whether the committee "thought it was right that we should pay 50 cents more than our next door neighbors were paying." This question had reference to the disparity between the daily wage rate paid employees by mine operators in Hopkins County who had not entered into a wage contract with the U. M. W. A. and the rate of those who had. The U. M. W. A. contract provided for a basic wage rate of $4.50 per day 128 Operators who had not entered into such contracts paid $4 per day. Apart from this reference to the wage rate and what discussion, if any, was had about it, the matter of decreasing the rate of wages as provided in the October 8 contract was not discussed by the respondent prior to March 31, 1936, with 125 Lovelace, secretary-treasurer of the U. M W. A., testified that there were then 162 employees who were members of the U. M. W. A , 150 of whom were paying dues. Im The agreement of October 8 provided in effect that the wage rate was to be deter- mined by the wage scale in the Appalachian Agreement which was then in process of negotiation . This latter agreement was Nation -wide in scope and was made by coal-mine operators throughout the country in the bituminous -coal industry with the United Mine Workers of America. Although the Appalachian Agreement was not introduced in evi- dence, a certain contract between the Western Kentucky Coal Operators' Association and the U. M. W A. of September 23, 1936, which was substantially the same as the Appalachian Agreement , was introduced in evidence. The basic rate of pay in this contract was $4 50 per day. WILLIAMS COAL COMPANY ET AL. 643 the U. M. W. A., or with any official, committee, or other repre- sentative of the U. M. W. A. On March 31, 1936, the respondent gave each of its employees a cer- tain written notice. At that time at least 108 of the 135 persons then employed at the mine,127 a substantial majority, were members of the U. M. W. A. The notice stated : Owing to the difference in the wage scale in this field, after seven months in effect and the other mines not coming up to the U. M. W. of A. Scale. We will not be able to operate under this scale any longer. As you are an employee of this company and have work here, we feel that you should answer as an individual WHETHER OR NOT you want to continue at work on the same scale as our competitors do, or compel us to shut down. We are not asking for a lower scale than the rest of the field has but the SAME SCALE. If you wisp to work on the scale existing in this Feld, please sign your name on a card and say you are ready to work on this basis. . If you fail to send us a note to this effect, we will know you think it just for the Sixth Vein Coal Corp. to pay more than the other mines. [Italics added.] On the morning following the distribution of this notice, as the employees were returning to work, the mine committee of the U. M. W. A. inquired of the mine foreman what the wage rate for the day would be. The foreman stated that he did not know. There- upon most of the employees went home, and the mine did not operate. When the superintendent, Blanchard, arrived at the mine, the em- ployees already were leaving. He said nothing because "there just -wasn't anything in particular to discuss ... we were not disposed to discuss it." However, either during that day or a few days later Blanchard told the mine committee that the respondent could not operate its mine at the $4.50 wage rate provided in the October 8 contract. The mine did not operate for several weeks. On or about April 10, 1936, the mine committee again met with Blanchard who stated that the respondent "would put them [the employees] back to work just like they quit." Although his statement was ambiguous, we are 'z' Lovelace, secretary-treasurer of the U. M. W. A., testified that on March 31, 1936, the Ti. M. W. A. had 108 dues-paying members and 86 exonerated members among persons employed by the respondent. The expression "exonerated members," when used in con- nection with a mine where the U. M. W. A. has a contract, refers to a class of employees who are either without present employment , as laid-off employees, or not regularly em- ployed ; that is, whose work is less than 5 days a month. It is apparent that at least 108 members of the U. M. W. A. were employed at the mine on March 31, 1936. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD satisfied that Blanchard did not intend thereby that the employees. could return to work at the $4.50 wage rate. His testimony that he informed the committee that the employees could return to work at, that wage is not convincing in the light of the surrounding circum- stances. The committee took the position that the employees would not return to work unless the respondent fulfilled its agreement, and a few days later at a meeting of the U. M. W. A. local the employees. voted to remain out on strike. Shortly after this meeting the mine committee of the local, upon learning that the mine would begin operations, visited the mine foreman and informed him that-em- ployees would return to work if the contract wage were paid. The mine foreman stated that he, did not know whether the mine would operate at that wage and the employees remained on strike. It is plain that on March 31, 1936, at a time when the U. M. W. A. was the duly authorized and exclusive representative 128 of the re- spondent's employees for purposes of collective bargaining with the respondent in respect to wages and other working conditions, the respondent by its written notice to the employees sought to negotiate upon an individual basis with them for a modification of the October 8 contract. Such a practice by an employer is completely destruc- tive of the principles of collective bargaining, for it not only "under- cuts" 123 the authority of the chosen representative to act within the sphere of representation in regard to the modification of a collective bargaining agreement but subjects the individual employee to the very pressures which collective bargaining would obviate. Under the Act the employer is obliged to refrain from negotiation with individual employees concerning any change in the terms of an exist- ing collective contract 130 We find that the respondent, by seeking to negotiate with its indi- vidual employees for a modification of the October 8 agreement, interfered with the exercise of their right to bargain collectively through representatives of their own choosing, as guaranteed by Section 7 of the Act. 12a As stated above, at that time approximately 108 of the 135 persons employed at the respondent's mine were "dues-paying" members of the U. M. W. A. The October 8 con- tract having been made when all of the employees eligible to membership in the U. M. W. A. were U M. W. A . members, the employer unit comprising such employees then and there- after constituted a unit appropriate for collective bargaining and one which insured to the employees the full benefit of their right to self -organization and to collective bargain- ing. That the U. M. W. A. had authority to negotiate in respect to matters of wages is apparent from the scope of the October 8 contract . It is equally clear that the respondent understood the authority of the U. M. W. A. in this regard. i National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862, 870 (C. C. A. 2d), cert. den 304 U. S. 576. 03" National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862, 868 (C. C. A. 2d), cert. den. 304 U. S . 576, see also National Labor Relations Board v Jones & Laughlin Steel Corp ., 301 U. S. 1, 44-45; Virginian Ry. Co v System Federation No. 40, 300 U S. 515 ; Senator Wagner stated, Hearings on Sen B111 1958 , 74th Cong, 1st Sess , pt. 1, p 43 : "to attempt to deal with his men otherwise than through repre- sentatives they have named for such purposes would be the clearest interference with the right to bargain collectively." WILLIAMS COAL COMPANY ET AL. 645 We are not satisfied from the record, however, that the March 31 notice was a cause of the strike. At the hearing the respondent urged that its lay-off of employees in the Third East Entry brought about the strike. We are of the opinion, and find, that the employees struck on April 1, 1936, because of the respondent's breach on that day of its agreement of October 8 to pay a basic wage of $4.50 per day. The lay-off may have been a factor, however, for the continu- ance of the strike. The respondent's breach of contract did not constitute an unfair labor practice within the meaning of the Act. 2. Interference with the right to self-organization and to engage in concerted activities From the middle of April until the middle of May 1936, a number of persons were employed at the mine to "brush" or clean it pre- paratory to the resumption of operations. During this period the striking employees commenced picketing on a public highway near the mine. On May 8, 1936, the mine bookkeeper, one Noel, appeared on a private road leading from the public highway to the mine and began taking photographs of the pickets 131 Noel carried a which he then proceeded to discharge by firing a shot into the ground. At once the respondent's superintendent, Blanchard, appeared on the scene from behind some bushes, carrying a machine gun. Certain armed guards were stationed in the vicinity of the mine. None of the pickets was armed, and prior to these events a group of the pickets had been seated along the highway playing cards. Blanchard asked Noel where the shot, which Noel fired, had come from. Noel replied, "Across the creek." Blanchard then stated, "If there is another shot we will all turn loose." Noel fired once more, again into the ground, whereupon Blanchard and the guards poured a fusillade of bullets from their weapons. The pickets immediately sought protection in a ditch on the side of the highway, and quickly dispersed. Apparently the shots were all aimed upwards, and none of the pickets was injured. At the hearing the respondent contended that the firing by Noel and his accessories was precipitated by the discharge of two shots "across the road from the mine." None of the respondent's wit- nesses identified any person or persons as having discharged the asserted two shots. The fact that the pickets were unarmed, the 131 One of the witnesses at the hearing testified as follows : Mr Noel came down there with a little picture machine . . . He worried around there for a long time and be couldn 't get us in a picture like he wanted . . . We would turn our backs , and all of that, because we knew what he was trying to do, and we objected to it; but I think finally he must have snapped the camera . . . He said. "The company will think that this is the best picture of you humped back sons of bitches that they have ever seen." 164275-39-vol xi-42 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD marked hostility of Noel 132 toward them and his anxiety to secure photographs of them, the presence of Blanchard and his guards fully armed when the supposed two shots were fired, leave no doubt that the shooting originated with the respondent's agents. We are of the opinion that the acts of the respondent an May 8 were deliberately engaged in for the purpose of intimidating and coercing its employees, before the resumption of operations, into ceasing their picketing and protest against the respondent's breach of contract. We find that in and by such acts 133 the respondent, Sixth Vein Coal Corporation, interfered with, restrained, and coerced its employees in the exercise of their right to self-organization, to assist labor organizations, and to engage in concerted activities for their mutual aid and protection, as guaranteed by Section 7 of the Act. 3. Domination of and interference with the formation and adminis- tration of the local of the I. M. U., and support to the local and the I. M. U. On or about May 15, 1936, the respondent resumed operations at the mine with between 58 and 60 employees then at work. This num- ber, with one or two exceptions, was composed of employees who had previously worked at the mine. The basic wage rate was $4 per day. From May 15 to July 1, 1936, the total number of employees at work gradually increased to 87.134 Those of the employees who left the mine on April 1, 1936, and did not return to work prior to June 16, 1936,136 were out on strike 136 On June 11, 19361 the respondent affiliated itself with The Operators' Association and has been a member ever since. By so joining, the respondent made itself party to and became bound by the outstanding 388 See footnote 131. 388 Cf. Matter of Clover Fork Coal Company and District 19, United Mine Workers of America, 4 N. L R. B. 202, 211, order enforced in Clover Fork Coal Company v. National Labor Relations Board, 97 F. (2d) 331 (C. C A. 6th). At the time of the hearing the number of employees at work in the mine was 137 June 16, 1936, is the date when the respondent made generally operative at its mine, as stated below, the I. M. U. closed-shop provision. 386 On April 1, 1936, when the strike commenced and mine operations ceased, the re- spondent employed at its mine 135 employees . The record shows affirmatively that at least 27 of these employees did not return to work by June 16, 1936, nor did they by that elate obtain regular or substantially equivalent employment elsewhere There is no claim or showing that any of the other striking employees who did not return to work by June 16, 1936, obtained such employment prior to that date. In the light of this evidence, the fact that the mine first resumed coal -loading operations in the middle of May, and the record, we presume, and accordingly find, that the status on June 16, 1936, of those employees who struck on April 1 and otherwise ceased work in connection with that labor dispute but did not return to work by June 16 , 1936, was that of striking employees. Cf. Jeffery-DeWitt Insulator Co. V. National Labor Relations Board, 91 F. (2d) 134 (C. C. A. 4th), cert. den. 302 U. S. 731. The mine superintendent , Blanchard , testified that employees who requested work during this period were given work, and that the other employees refused to report to work although opportunity to do so was given them. He further testified with respect to 58 of the employees at work that practically all were old employees. WILLIAMS COAL COMPANY ET AL. 647 agreement between The Operators' Association and the I. M. U. of April 1, 1934, as renewed June 20, 1935.181 It also was a party there- after to the subsequent I. M. U. agreement of November 14, 1936. On June 12, 1936, two employees of the respondent undertook the formation of a local of the I. M. U. among the employees at work in the mine. On June 15 the local was formed at an organizational meeting and officers were elected. Twenty-eight of the employees working in the mine attended the meeting, became members of the I. M. U., and signed individual contracts with the respondent similar in form to the individual contracts above-mentioned in connection with the Williams Coal Company and the Reinecke Coal Mining Company cases.188 Prior to June 15 no more than five of the respond- ent's employees were I. M. U. members.189 On June 16, 1936, the closed-shop provisions of the I. M. U. agreement of April 1, 1934, as extended June 20, 1935, went into effect at the respondent's mine. On and after that date all employees at work in the mine, and those striking employees who returned to work, were required by the re- spondent through its enforcement of the closed shop to join the I. M. U. and the I. M. U. local as a condition of employment.140 They also were compelled by the respondent, in order to preserve their jobs, to sign the individual contracts.141 187 See Section III A, supra, The agreement provided that its terms were binding upon the membership of the contracting parties. That the respondent considered itself so bound upon becoming a member of the Association is evidenced , among other things, by its enforcement of the closed-shop provision contained in the agreement . Nance testified that the respondent became a party to the contract by joining the Association. He also, testified that such assumption of affiliation "would automatically put them under the contract." 188 See Section III B 4, supra. 139 Penley, the employee who was instrumental in organizing the local , testified as follows : Q. When did the men join the I. M. U.? A On the 15th. Q. At the local meeting? A. Yes. Q. How many men were at that meeting? A. Twenty-eight I initiated that day. Q Was that all you had in the I. M. U. at that time? A. Practically all of them. It was around that. There was a few more. There were three there from another local that had cards. Penley had no authority to present individual contracts of employment to employees be- fore the first meeting. He testified : Q. You mean you signed no men up before the first meeting? A. No, I didn't have any authority. 140 For the most part the assumption of affiliation with the I. M. U. took the form of executing the individual contracts . Thereafter, all who signed were formally "obligated" as members at a meeting of the local of the I. M. U. See footnote 52. 141 Although some employees signed the individual contracts upon being presented by the organizers of the local with these contracts for their signatures , and being given the understanding that they were required to sign as a condition of employment, such signing must be deemed attributable to the respondent . The individual contracts , by their terms, were made with the respondent ; were never renounced by it; indeed , were used by it as a basis for the check-off, and in other ways ratified and acted upon by it. Other employees signed the individual contracts at the direction of the respondent acting through its mina foreman and superintendent. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At all times since June 16, 1936, the employees at work in the mine, including all striking employees who returned to work, have been coerced by the respondent in order to retain and obtain employment at the mine, into being members of the I . M. U. and of the I. M. U. local, acquiescing in the check-off of dues and assessments to these organizations , and into binding themselves to the afore -mentioned agreement of April 1 , 1934, as extended June 20, 1935 , and the suc- ceeding agreement of November 14, 1936, between The Operators' Association and the I. M. U. During this period the provision for a closed shop in these agreements has been in continuous force and adherence to the individual contracts has been insisted upon by the respondent. Throughout, the respondent transmitted substantial sums of money to the I . M. U. and the I. Al. U. local in accordance with the provisions of the check-off. While it is unnecessary to determine whether the respondent initi- ated the first steps taken in June 1936 to form the I. M. U. local at its mine '112 the facts clearly show that the growth of the local im- mediately thereafter during its formative period was directly brought about by the respondent's acts. Following immediately the June 15 organizational meeting of the local, all employees at work in the mine, other than the 33 who already were members '143 were compelled through the enforcement by the respondent of the closed-shop provi- sion of the I. M. U. agreement, to join the I. M. U. and, accordingly, the local of the I. M. U. They likewise were required as a condition of employment to authorize a check-off of dues to these organizations and to bind themselves to the I. M. U. agreement. Thus, the re- spondent, by gathering all of its employees into the I. M. U. local and making certain of their contribution to its financial needs, fashioned and completed the formation of the I. M. U. local at its mine. In this manner , the respondent dominated , interfered with, and supported the formation of the local. Since June 16, 1936, the respondent has continued in various ways its domination, interference , and support respecting the local. Em- ployees, including striking employees who from time to time returned to work, have been compelled by the respondent's enforcement of the closed-shop provision to maintain affiliation with the I. M. U. and I. M. U local . The respondent has coerced its employees into accept- 143 The circumstantial proof is strongly persuasive that the organizational activities leading up to the meeting of the I M U. local on June 15, 1936 , as well as the meeting itself, were instigated by the respondent The two employees who engaged in organizing the local commenced their activities on the day following the respondent 's joining The Operators' Association As heretofore pointed out, in so becoming a member, the respond- ent bound itself to the closed-shop agreement with the I. M. U (See footnote 137.) Moreover , the 28 employees who became members of the I M. U. at the June 15 meeting all signed at that time the individual contracts , which contracts were made , as stated above, with the respondent, and, further, expressly referred to the agreement between The Operators' Association and the I M. U. 148 As stated above, 28 of these employees joined the I. M. U. on June 15, 1936. WILLIAMS COAL COMPANY ET AL. 649 ing the check-off, and, thereunder, has transmitted sums of money to the local. As in the above cases of the Williams Coal' Company and the other respondents, the scope and functioning of the local as a labor organization was narrowly confined by the terms of the agree- ments entered into by The Operators' Association, acting for itself and as agent for the respondent with the I. M. U., which agreements the respondent's employees were compelled to accept, and to which they were bound, as a condition of employment.144 In similar manner the respondent has supported the I. M. U. since June 16, 1936. It has compelled adherence of employees to that organization, acceptance of a check-off to it, and the assumption of obligation under its contracts. The above activities of the respondent concerning the I. M. U. local and the I. M. U. were not sanctioned under the Act by reason of the closed-shop provision in the I. M. U. agreements of April 1, 1934, and November 14, 1936. This provision, in so far as it related to the respondent's employees, was not validated by the proviso to Section 8 (3) of the Act. It is manifest that on June 11, 1936, when the respondent became a party 145 to the I. M. U. agreement and to the provision for a closed shop, the I. M. U. did not represent a majority of the respondent's employees in any conceivable appropriate bargaining unit composed of employees of the respondent 146 including the appropriate bargain- ing unit covered by the provision for the closed shop as applied to such employees. At that time the I. M. U. had no more than three members among the respondent's employees. This want of a majority representation alone would prevent the "making" and operation of the closed-shop provision, in so far as it related to the respondent's employees, and acts of the respondent thereunder, from being vali- dated by the proviso to Section 8 (3). It also is evident that on June 16, 1936, when the closed-shop pro- vision became generally operative at the respondent's mine, the I. M. U. and the I. M. U. local did not represent a majority of the respondent's employees in the appropriate collective bargaining unit covered by such provision as applied to such employees. This provision, so ap- plied, required in effect that all employees 147 of the respondent be '44 See Section III B 4, supra. 145 The proviso to Section 8 (3), in speaking of the employer "making" a closed-shop agreement, includes instances such as here where the employer becomes a party to an exist- ing closed-shop agreement, and does so through affiliation with an employers' association. See footnote 86. 148 See Section III B 4, supra, for discussion on unit composed of employees of more than one respondent. 147 The respondent, in its Amendment to Answer, failed to deny and therefore admitted that on June 11, 1936, "the Association had a contract with the Independent, which in effect required all employees of members of the Association to join the Independent." Membership in the I. M. U., as stated in the Articles of Incorporation of that organization, is open to "all persons now or hereafter employed in the mines of western Kentucky " 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the I. M. U. and the local. The only employees excepted were outside laborers required for emergency purposes or in the ab- sence of a regular employee, certain construction employees, and unless otherwise determined by the respondent in its sole discretion, the mine foreman and his assistants, weighman, certain bosses, head elec- tricians, master mechanics, and certain watchmen.148 Whether or not the employees of the respondent thus covered by the closed-shop pro- vision constituted an appropriate collective bargaining unit, we shall assume that they did. As above mentioned, on April 1, 1936, when the strike began, 135 persons were employed at the mine, of whom at least 108 were members of the U. M. W. A.149 The U. M. W. A. members were all within the above unit later covered by the closed- shop provision.'" Between May 15 and July 1, 1936, while the strike was still in progress, the number of employees at work gradually in- creased from 58 to 87, and, assuming a viewpoint most favorable to the respondent,151 viz, that this number represented all old employees who returned from the strike, the number of employees remaining out on strike correspondingly decreased during this period from 77 to 48. We have heretofore found that prior to June 16, 1936, none of the striking employees secured regular or substantially equivalent em- ployment elsewhere.'52 Consequently, irrespective of what number of the 108 employees remained on strike or return to work, at most only 33 of the 108, or a minority, joined the I. M. U. and local before June 16153 148 See Sections 11 (10 ) and 20 ( 1) (2) of the I. M. U. agreement of April 1 , 1934, as renewed June 20, 1935. Also footnote 45 with respect to I M. U. agreement of November 14, 1936. The complaint in paragraph 4 alleged and the respondent 's answer admitted that all of the respondent's mining employees, excluding foremen, bosses, and other super- visory employees, technical help, the clerical force, and company executives , constituted an appropriate bargaining unit. It is apparent that any variations between this unit and that covered by the agreement as applied to the respondent's employees are not substan- tial , and, for present purposes , are immaterial, because the employees concerned come within both units. 140 See footnote 127. 160 Eligibility to membership in the U. Al. W. A. was confined within the classifications covered by the closed shop. See Section II, supra. 161 See Matter of A. Sartorius & Co. Inc. and United Mine Workers of America, District 50, Local 12090, 10 N. L. R B. 493, Supplemental Decision and Certification of Repre- sentatives, and footnote 156, infra. 163 See footnote 136. 153 This conclusion is supported by another approach . It appears that at least 58 of the employees who returned to work between May 15 and July 1 were within the unit, and the record strongly supports the inference that a substantial number of the remainder were likewise within it. Blanchard , the mine superintendent, testified that when operations were resumed, practically all of the employees were old employees . He further testified that he put the first 58 or 60 employees who applied for work during this period to brush- ing the coal and then to coal loading . This work is performed by employees in the unit covered by the closed shop. The evidence further shows that of the striking employees who did not return to work by June 16, 1936, at least 14 were within the unit, and the inference likewise is strong that a substantial number of the remainder of them also were within the unit. Blanchard testified that the employees who did not return to work after his meeting with the U. M. W. A. on or about April 10, did so because of the U. M. W. A.'s determination to continue the strike . The continuance of the strike was pursuant to the strike vote taken WILLIAMS COAL COMPANY ET AL. 651 In reaching the conclusion that only a minority of the employees within the unit covered by the closed-shop provision, as applied to the respondent's employees, were members of the I. M. U. and its local, at the time the provision became generally operative on June 16, we have interpreted the provision as covering employees within the unit who were then out on strike. This construction is supported, among other things, by the respondent's requiring of all striking employees who re- turned that they be members of the I. M. U. and of the local before resuming work. However, irrespective of whether the unit covered by the terms of the closed-shop provision as applied to the respondent's employees, expressly included striking employees within the unit, these employees constituted an integral part of the appropriate bar- gaining unit whose representation would have to be taken into ac- count by the respondent and the I. M. U. when "making" or causing effect to be given to a closed-shop agreement. An employer cannot, by entering into a closed-shop agreement with a labor organization representing a majority of certain employees who have forsaken a strike of all the employees and returned to work '154 compel the striking employees who remain on strike, as well as the other strikers who have returned to work, to become members of and in effect be represented by that labor organization, unless a majority of both the employees who return to work and those who remain on strike within the appropriate unit have designated that labor organization their bargaining repre- sentative. Under Section 2 (3) of the Act, the striking employees had their status as employees preserved on June 16, 1936, for the purposes of the Act, including the rights guaranteed by the Act 165 Hence, they retained the same right which they had before going on strike to be included within the appropriate unit, to the end of participating in the selection of a bargaining representative.158 It is complementary by the U. M. W. A. at a meeting of the local , and the probabilities are that those who did not return to work prior to June 16 , 1936, were for the most part U. M. W. A. members. All of these, as stated in footnote 150, were in the unit. Thus, on June 16, 1936, when the closed-shop provision was openly enforced by the re- spondent, there were between 58 and 87 employees at work, at least 58 of whom were in the appropriate unit, and there were not less than another 14 employees within the unit among those who were out on strike prior to July 1. Computing the minimum number of employees within the unit among the employees who returned to work prior to July 1 together with those who continued on strike , there were 72 such employees. As stated above, prior to June 16 the I. M. U. had at most 33 members. This constituted , therefore, a minority of the 72 employees within the unit as here determined. '- We here assume, without finding, that such was the circumstance. 115 National Labor Relatvon8 Board v. Mackay Radio d Tel . Co., 304 U. S. 333. 150 In Matter of A. Sartorius d Co. Inc. and Un4ted Mine Workers of America, District 50, Local 12090, 10 N. L. R. B. 493, Supplemental Decision and Certification of Representa- tives, we held that strikebreakers hired for the first time since the strike began were not eligible to participate in the selection of a bargaining representative during the currency of a strike if the positions which they occupied were positions formerly occupied by em- ployees still on strike and which such striking employees claimed as theirs . In this case we have not found it necessary to determine whether any of the employees at work in the mine during the period from May 15 to July 1 held positions which employees out on strike claimed as theirs. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to this right to select a representative that the inhibition above-meli- tioned has been placed upon the making of a closed-shop agreement, for otherwise to allow such an agreement would be to permit a destruc- tion of the right. The provision for a closed shop in the I. M. U. agreement of April 1, 1934, as renewed June 20, 1935, not being validated by the proviso to Section 8 (3) either when "made" on June 11 or when put into general operation on June 16, in so far as the respondent's employees were concerned, it follows that the provision for a closed chop in the I. M. U. agreement of November 14, 1936, likewise, as to such em- ployees, was not validated. Inasmuch as the acts above set forth of -the respondent in relation to the I. M. U. and the I. M. U. local were not sanctioned by the Act, these organizations were on November 14 labor organizations established, maintained, or assisted by unfair labor practices, within the meaning of the proviso. We find that the respondent, Sixth Vein Coal Corporation, domi- nated and interfered with the formation and administration of the, local of the I. M. U. at its mine, and contributed support to it and to the I. M. U.; that in and by such acts, and each of them, the re- spondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act. 4. Discrimination as to terms and conditions of employment, and the refusal to reinstate and employ the striking employees on and after June 16, 1936 The respondent, as stated above, on and after June 16, 1936, re- quired of all employees as a condition of employment that they become members of the I. M. U. and the I. M. U. local, authorize a check-off of dues to these organizations, and bind themselves to the I. M. U. agreements. It is clear that this condition presupposed that the employees be loyal to the I. M. U. and resign their membership in, or refrain from becoming a member of, any other labor organization, including the U. M. W. A. The imposition of the condition by the respondent was open and notorious, and well known to the employees out on strike on June 16, 1936. Employees who went on strike and since June 16, 1936, have returned to work were required by the re- spondent, in order to obtain reinstatement and employment at the mine, to comply with the condition. The condition has never been removed. No claim or showing is made that the positions which the employees on strike June 16 had formerly occupied at the mine were filled or otherwise unavailable to at least a substantial number of them when the condition attached. Indeed, the proof is to the contrary. That WILLIAMS COAL COMPANY ET AL. 653 the striking employees were secured under the Act against unfair labor practices, has already been pointed out 157 We find that the respondent, Sixth Vein Coal Corporation, by requiring, on and after June 16, 1936, as a condition of employment that employees become and remain members of the I. M. U. and the I. M. U. local, authorize a check-off of dues to these organizations, and bind themselves to the I. M. U. agreements,16' discriminated in regard to the terms and conditions of the employment of these em- ployees, thereby encouraging membership in the I. M. U. and dis- couraging membership in any other labor organization, including the U. M. W. A. Moreover, with respect to the striking employees, we find that said respondent, by requiring on June 16, 1936, as a condition of reinstate- ment and employment that these employees be members of the I. M. U., authorize a check-off of dues to these organizations, and bind themselves to the I. M. U. agreements, discriminated in regard to the hire and tenure of employment of these employees, thereby encour- aging membership in the I. M. U. and discouraging membership in any other lal3or organization, including the U. M. W. A. Such con- dition was imposed subsequent to the strike by the respondent. Its imposition on June 16, 1936, was equivalent to a refusal by the re- spondent at that time of an application by the striking employees to be reinstated for failure to conform with the condition. It is imma- terial that the employees in fact made no application for reinstate- ment. As we stated in a case involving similar circumstances :169 To say that because they have not made application to go to work they were not refused employment would be to place a penalty upon them for doing what they knew would have proved fruitless in the doing . . . Nor is it an answer to say that they were striking, and would not have applied in any event. That was for them to decide.'s° 157 See Section III E 3, supra In National Labor Relations Board v. Mackay Radio d Tel. Co, 304 U. S. 333, the United States Supreme Court stated, after referring to the definition of "employee" in Section 2 (3) of the Act : Within this definition the strikers remained employees for the purpose of the Act, and were protected against the unfair labor practices denounced by it. See also National Labor Relations Board v Carlisle Lumber Co ., 94 F. (2d ) 138 (C. C. A. 9th), cert den. 304 U. S 575 , and Jeffery-DeWitt Insulator Co. v. National Labor Rela- tions Board, 91 F. (2d ) 134 (C. C. A. 4th), cert. den 302 U S. 731. 156 The reasons set forth in Section III E 3 , supra, as to why the respondent's acts there were not excused under the proviso to Section 8 ( 3), apply equally here. 15/ Matter of the Carlisle Lumber Company and Lumber it Sawmill Workers' Union, Local 2511, etc, 2 N . L R B. 248 , 265-266, enforced in National Labor Relations Board V. Caslasle Lumber Company, 94 F. (2d) 138 (C C. A 9th), cert . den. 304 U. S 575 161 See National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862, 872 ( C. C. A 2d ). Also Matter of Sunshine Mining Company and International Union of Mine, Mill, and Smelter Workers, 7 N. L R. B. 1252 , 1269; Matter of Jacob A . Hunkele, etc. and Local No. 40, United Laundry Workers Union, 7 N. L. R. B. 1276, 1288. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the respondent at no time prior to June 16 terminated the employment of the employees on strike, its refusal to reinstate of June 16, 1936, was a discharge of these employees?Rl Moreover, inasmuch as such refusal affected the reasonable expectancy of these persons for resumed employment, it was tantamount to a refusal to employ. We further find that said respondent in and by said discrimina- tion in regard to the terms and conditions of employment of its em- ployees, and their hire and tenure of employment, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. The amended complaint against the respondent includes 30 per- sons, whose names are listed in Appendix E, as employees who were refused employment by the respondent for failure to comply with the condition. The record shows that all of these persons except Luther Abbott, Espy Brown, and Elgin Rawlins, were among the employees laid off prior to the strike upon the closing of the Third East Entry, that Abbott was laid off or discharged between the time of the lay-off and March 31, that Brown would have been included in the lay-off but was home ill at the time it occurred and never has returned to work; and that Rawlins was laid off during the first half of March 1936, although it is not clear whether he had worked in the Third East Entry. The evidence does not satisfactorily es- tablish that the lay-off of any and all of these persons was not in fact a discharge, nor is it shown that such lay-off or discharge con- travened the Act. If these persons were discharged, the imposition of the condition on June 16 was immaterial as to them. Accordingly, in these circumstances, we will dismiss the allegations of the com- plaint as to the persons named in Appendix E. F. The Operators' Associations-The unfair labor practices 1. Domination of and interference with the administration of the I. M. U. and support to the I. M. U. The respondent, The Operators' Association, as mentioned earlier,boa is a non-profit, non-stock membership association, incorporated un- der the laws of Kentucky and composed of owners and operators of coal mines in western Kentucky. At the present time its member- ship comprises 19 coal-mine operators, each of whom is an em- ployer of labor. The Association was organized in 1919 for the corporate purpose, among others, "to perform such services as may be to the mutual interest of all members of this Association and to 101 National Labor Relations Board V. Mackay Radio d Tel. Co., 304 U. S. 333. 102 See Section II, supra. WILLIAMS COAL COMPANY ET AL . 655 enable the members through the agents and officers of the same to act in unison and more expeditiously in the management of such lawful affairs as may affect the members thereof in their capacity as owners of coal mines or producers of coal." In furtherance of this purpose to secure unity of action among its members, as well as by way of acting as agent for and in the interest of the members, the Association has dealt with certain features of the industrial rela- tions between members and the employees at their respective mines. As already set forth,l6s in June and July 1933, The Operators' Association, in its own behalf and as agent for and in the interest ,of its members, promoted, sponsored, and supported the formation ,of the I. M. U. as a counter-movement to unionization of the west- ern Kentucky coal fields by the U. M. W. A. The acts of Nance in this connection, and other facts and circumstances, have been set forth above and will not be repeated 184 We concluded and found that the I. M. U. was wholly inspired by and the creature of The Operators' Association and of its members. On August 10, 1933, The Operators' Association, acting for itself and in the interest of and as agent for its respective members,168 entered into the written agreement heretofore mentioned 188 with the I. M. U., providing for "wage scales and working conditions" of employees at the mines of members of the Association. The agreement by its terms was bind- ing not only upon the parties but upon their respective memberships. Some of the terms of this agreement have been heretofore ad- verted to.167 In addition to providing for a closed, shop 168 at the mines of member operators, and, further, providing in considerable detail for wages, hours, and other working conditions of the em- ployees at such mines, the agreement made provision as follows : Section 22.-This Agreement constitutes the only Agreement between the men employed by the Operators and the Operators' Association and there shall be no demands made locally that will conflict with this Agreement. Local conditions in any mine which conditions are not covered by this Agreement, shall be adjusted locally subject to Section 18. Section 18.-It is agreed that no local committee, local or dis- trict officer, has the right, under this Agreement, and therefore must not exercise the right, to stop work at any time under any 188 See Section III A, supra. 184 See Section III A, supra. 1a5 The corporate purposes of The Operators' Association contemplate its carrying on of certain activities as agent for its members as a means of achieving unity of action. The I. M. U. agreement expressly bound the members of the Association. This presupposed the exercise of agency functions. 188 See Section III A, supra. 161 See Section III A, supra. 168 See Section III A, supra. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances whatsoever until the question or questions in dis- pute have been referred to the Commissioner and arbitration resorted to ; and that in the event of any differences arising be- tween the Operator and employes at any time a settlement shall be arrived at without stopping work. If the parties immedi- ately affected cannot reach an agreement between themselves as above pi ovided, the question shall be referred, without delay, to a Board of Arbitration consisting of two members-one to be the Commissioner, or a similarly appointed official selected by the Operators, who are members of the Operators' Association, or the appointee of the Commissioner, the other, the President of the Independent Miners Union, or his appointee. In the event of these two being unable to reach a decision they shall select a third member, and the decision of said Board of Arbi- tration shall be final and binding on all parties to this Agree- ment and those they represent. But under no circumstances shall work stop before the decision of the Board of Arbitration is received, and such stoppage of work before the decision of said Board of Arbitration is received, shall be sufficient cause to discharge the local officers, mine committee, and party or parties causing the dispute, unless the local officers and committee show that they have used due diligence to keep the men at work and themselves report for work. Section 16.- . . . The duties of the Mine Committee shall be .confined to the adjustment of disputes between the Mine Fore- man or Superintendent and any of the members of the I. M. U. working in and around the mine. The Mine Committee shall have no authority whatsoever or exercise any control or in any way interfere with the operation of the mine, and for any viola- tion of this clause the Committee or any member thereof, shall be discharged. Section l (2).-Should any local union or its members em- ployed at any mine cause the mine or any part of the mine to shut down in violation of this agreement, each member of the union employed at said mine, save and except those who remain at work, shall be fined one ($1.00) dollar for each day or part of any day the mine is thus thrown idle; Section 21 (3).-No strike shall be called or allowed at the mines of the Operators, parties hereto, to enforce demands upon any other employers of labor. Section 21 (2).-The Operators, parties hereto, shall not be required or coerced by strikes or otherwise to join, affiliate, con- tract or act with any other organization of employers, or any other organization or association of any character. WILLIAMS COAL COMPANY ET AL. - 657 On April 1, 1934, June 20, 1935, and November 14, 1936, The Oper- ators' Association, for itself and in the interest of and as agent for its respective members, entered into successive agreements, in one instance by way of renewal, with the I. M. U. relating to wages, hours, and working conditions of employees at the mines of member operators: All of these agreements were of substantially the same import as the initial agreement between thei parties of August 10, 1933. They con- tinued the provision for a closed shop at the mines and, in identical language, contained the various provisions of the August 10, 1933, agreement which have been quoted above. Thus, at all times since August 10, 1933, there has existed a contractual relationship between The Operators' Association and the I. M. U. of the character estab- lished by the agreement of that date. Nance was president of the I. M. U. throughout this period 169 The acts of the respondents, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company and Sixth Vein Coal Cor- poration in relation to the I. M. U. and locals of the I. M. U. have been set forth above and illustrate the nature and extent of the individual conduct engaged in by at least those member operators toward joint achievement with The Operators' Association of the aims which moti- vated the establishment of the I. M. U. As heretofore mentioned'170 the Reinecke Coal Mining Company and the Grapevine Coal Company were members of the Association when that organization was formed. After the execution of the I. M. U. agreement of August 10, 1933, the Reinecke Coal Mining Company in August and the Grapevine Coal Company in November 1933 compelled all of their employees, as a condition of employment, to join the I. M. U., authorize a check-off of dues to that organization, and accept legal obligation under the I. M. U. agreement.,- At the mine of neither respondent was a majority of the employees members of the I. M. U. when the condition was imposed and enforced. At the Reinecke Coal Mining Company employees were not permitted to enter the mine unless they signed the individual contracts; 72 at the Grapevine Coal Company the respondent preceded iii Under the articles of incorporation of the I. M. U , Nance acted as president pro tem until the first election. The term of office of president was fixed as 3 years. There is no showing of the circumstances surrounding Nance 's election, if any , prior to January 1936, when an election was held. The articles provided for a first election on or before January 1, 1934. Nance testified : Q. Was it [the I. M. U.] already in existence at the time you took the position of president? A. No, it never had been started. Q You did not take the position of president of the organization because it had never been started? A. Well, I took the presidency by reason of our incorporation papers. Q You were president from that time continuously, were you, and ever since? A Yes, and I was re-elected president in January 1936, I believe it was. i70 See Section III C 1 and III D 1, supra. i'i See Section III C 1 and III D 1, supra. 172 See Section III C ], supra. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its enforcement of the condition by refusing to bargain with the U. M. W. A. which then represented a substantial majority of its employees, by locking out the employees for 46 days, and by refusing work to employees after the mine reopened unless they signed the I. M. U. cut- off sheet.178 The Sixth Vein Coal Corporation became a member of The Oper- ators' Association in June 1936, during the course of the strike brought about by that respondent's breach of its existing contract with the U. M. W. A.174 The Williams Coal Company affiliated itself with the Association in November or December of that year 176 Both respond- ents, at about the time of or shortly after their joining the Association, likewise required of all their respective employees, as a condition of employment, membership in the I. M. U., authorization of a check-off of dues to it, and the assumption of obligation under the agreement between The Operators' Association and the I. M. U. then outstand- ing.17'6 The I. M. U. did not then represent a majority of either re- spondent's employees within the appropriate bargaining unit covered by the closed-shop provision of the agreements when the condition was imposed. From the time of imposition the above compulsions have contin- ued and remained operative at the mines of these respondents. Hire and tenure of employment have been conditioned upon acquiescence of the employees to them. In 1937 employees of the Williams Coal Company and Reinecke Coal Mining Company were discharged for membership in and activities in connection with the U. M. W. A. and disloyalty to the I. M. U.177 On June 16, 1936, the Sixth Vein Coal Corporation refused reinstatement and employment to its striking employees save upon submission to these compulsions, 178 and in 1937 the Grapevine Coal Company locked out its employees and there- after refused to bargain with the U. M. W. A., although a majority of such employees in an appropriate bargaining unit had designated that organization their bargaining representative 179 All four re- spondents, by virtue of the check-off, have directed a steady stream of funds to the I. M. U. The Operators' Association is subject to the jurisdiction of the Board under the Act. Section 2 (1) of the Act provides that the term "person" when used in the Act, includes "associations." Sec- tion 2 (2) provides that the term "employer" includes "any person" 178 See Section III D 1, supra. 174 See Section III E 3, supra. 171 See Section III B 4, supra. tae See Section III E 3 and III B 4, supra. 177 See Section III B 5 and III C 2, supra 178 See Section III E 4, supra. 171 See Section III D 2 and III D 3, supra. WILLIAMS COAL COMPANY ET AL. 659 acting directly or indirectly "in the interest of an employer." Sec- tion 2 (3) defines the term "employee" to include "any employee, and shall not be limited to the employees of a particular employer." 180 The above facts establish that at all times since July 1, 1933, The Operators' Association acting for itself and in the interest of and as agent for its members, and independent thereof, acting in concert and combination with the four respondent operators herein, has supported the I. M. U., and dominated and interfered with its ad- ministration 181 The making of the broad agreement of August 10, 1933, by the Association with the I. M. U., and the continuance of that contractual relationship between the parties through the suc- cessive agreements thereafter entered into, constituted support of great magnitude .1112 The Operators' Association thereby granted the I. M. U. all of the strength and prestige which contemporaneous, continuous recognition of a labor organization by a large group of employers through their organization could confer.183 In respect to the respondent operators herein, this support, granted in their in- terest and behalf both as members of the Association and as individ- uals, has been particularly marked. As above mentioned, a sub- stantial majority of the persons employed at the Grapevine Coal Company mine were members of the U. M. W. A.,184 and only a minority of employees at the Reinecke Coal Mining Company had joined the I. M. U.,185 when the August 10 agreement was executed. Similarly, only a minority of the employees at either the Sixth Vein Coal Corporation or the Williams Coal Company had joined the I. M. U. when the outstanding I. M. U. agreement was put into effect 180 Cf. Matter of Shipowners' Association of the Pacific Coast, et al. and International Longshoremen's and Warehousemen's Union, Distract No. 1, 7 N. L. R B. 1002, 1024-5; Matter of Mobile Steamship Association et al. and International Longshoremen and Ware- housemen's Union, 8 N. L. R. B. 1297; Matter of Admiar Rubber Company et al. and American Federation of Labor on Behalf of Employees of Company, 9 N. L. R. B. 407. 181 Upon principles heretofore discussed, this action of The Operators' Association, in so far as it continued after the effective date of the Act, cannot be excused or justified as performance of a closed-shop agreement validated by the proviso to Section 8 (3) of the Act On July 5, 1935, the I M. U. was an organization, established, maintained, and assisted by action defined in the Act as unfair labor practices, and nothing was ever done to remove this taint. Accordingly, the continuation in force, on and after July 5, 1935, of the closed-shop provision in the agreement of April 1, 1934, as renewed June 20, 1935, was not sanctioned by the proviso to Section 8 (3) ; and it follows that the renewal of the closed-shop provision in the agreement of November 14, 1936, was with a labor organiza- tion not only established, maintained, and assisted by action defined as unfair labor prac- tices, but maintained and assisted by unfair labor practices. See Section III C 1, supra. 162 National Laboi Relations Board v.. Pennsylvania Greyhound Lines, Inc , 303 U. S. 261, 267. Cf. Matter of Taylor Trunk Company and Luggage Workers Union, Local No. 50, etc., 6 N. L R. B. 32. 188 As the United States Supreme Court pointed out in Consolidated Edison Company etc at al. v. National Labor Relations Board et al., 59 Sup. Ct. 206, 220: "The Act con- templates the making of contracts with labor organizations. That is the manifest objec- tive in providing for collective bargaining." 164 See Section III D 1, supra. 181 See Section III C 1,supra. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at their respective mines 186 At the mine of the Sixth Vein Coal Corporation, a strike induced by that respondent's breach of con- tract with the U. M. W. A. was in progress when the I. M. U. agree- ment there became operative,187 and in 1937 at the mine of the Grape- vine Coal Company that respondent insisted upon adherence to the I. M. U. agreement after a majority of the employees joined the U. M. W. A.188 Of course, we do not intend by what has been stated above that in cases involving contracts with a freely chosen bargain- ing representative under the Act, the support consequent upon the making and continuance of an agreement with such representative contravenes the Act. However, here the contracts were with a labor organization which the employer itself created. Not only by its engaging in a contractual relationship with the I. M. U. but by its contractual undertaking and agency, has The Operators' Association supported the I. M. U. It in effect obligated itself to cause each of its member operators whom it also bound as principals, to require of their respective employees as a condition of employment, membership in the I. M. U. Thus, the Association, as a body of employers and as an employer agency, has assured the I. M. U. by contractual obligation a sustained membership. In di- rect consequence the four respondent operators herein, as already stated, have imposed and enforced such a condition of employment at their respective mines. Moreover, The Operators' Association undertook for itself and its members in the several I. M. U. agree- ments that the terms of each agreement with respect to the matters therein covered would constitute the only such agreement between the operator members and their respective employees.189 These em- ployees, whether they joined the I. M. U. or not, were forbidden to make any demands "locally that will conflict with this Agreement." By thus assuring the I. M. U. that its agreements would remain exclusive in their field at the various mines of member operators and would not be superseded by any agreement of a member operator either with its employees or a competing labor organization repre- senting such employees, the Association accorded its creature further security and prestige.190 The adoption of a closed-shop provision in the agreements between The Operators' Association and the I. M. U. has obligated all member 181 See Section III E 3 and III B 4, supra. 181 See Section III E 3, supra 188 See Section III D 2. 189 See language of agreement, Section 22, quoted above 19o An instance of the effect of this provision may be observed in connection with the case of the Grapevine Coal Company where that respondent in 1937 refused to bargain with the U. M. W. A. although it represented a majority of the employees, on the ground that such bargaining would abrogate the I. M. U. agreement. We do not determine whether an agreement for an exclusive bargain with a freely chosen bargaining representa- tive would constitute support in violation of the Act. WILLIAMS COAL COMPANY ET AL. 661 operators to compel their respective employees to accept and continue to accept representation by the I. M. U. in negotiations with the Association concerning wages, hours, and other working conditions. Such negotiations have been confined to a process of bargaining between the Association and the I. M. U. Individual operators and the local organizations of the I. M. U. have been divested of authority to act in the premises. As stated above, Nance has been president of the I. M. U. throughout. The agreements reached were by express provision exclusive in character. With regard to local disputes not covered by their terms, such controversies were left for adjustment, in the first instance, by the respective locals and mine foremen or superintendents. However, any local dispute of consequence which could not be settled in this manner was required to be submitted to arbitration by two persons, an Association representative and the president of the I. M. U., in this case, Nance. Rights of employees to strike were seriously curtailed and their engaging in sympathetic strikes banned.191 Thus by concentrating in the I. M. U. through the closed-shop pro- vision the sole power and authority to represent all employees of member operators in collective bargaining and undertaking that the exercise locally of such power and authority even within the I. M. U. organization was forbidden, by making intransigency of employees against this scheme of things amenable to loss of livelihood, and strike action subject to similar penalty and other forfeitures, by pro- viding that the I. M. U. agreements were exclusive and that local employee disputes were to be resolvable, in effect, through Nance, and by other means, The Operators' Association, for itself and its member operators, has been enabled to project, and necessarily has so extended, over the I. M. U. ever since its formation the influence of employer control arising from and consequent upon its having sponsored and engineered the I. M. U. Nothing has ever been done by the Association or any of its members to remedy this situation." A labor organization created by an employer and thereafter per- petuated by employer compulsions, is not a freely chosen bargaining agency, but continues an organization whose administration and affairs are dominated and interfered with by the employer, within the meaning of the Act.193 117 See agreement, Sections 2 (2), 21 (2). and 21 (3) quoted supra. 102 There is some evidence that one operator member withdrew from The Operators' Association, repudiated the I. M. IT. contract, and signed a contract with the U. M, W. A. 1'2 National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc. et al., 303 U. S. 261 ; National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 U. S. 272. See also Consolidated Edison Corn pang etc, et al. V. National Labor Relations Board et al., 59 Sup. Ct. 206, 220. 164275-39-vol. xi--43 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The acts of the four member operators, the respondents herein, relating to the I. M. U., have already been found to constitute sup- port to that organization.194 These acts either proximately resulted from or were in concert with the activities of the Association, and must be deemed part of the combination set up to defeat self-organi- zation in the western Kentucky coal mines. Such acts of these respondents are attributable to the Association. The afore-mentioned facts show that the I. M. U. has repeatedly served The Operators' Association, both before and after the Act, as a means of forestalling and preventing employees of member operators from organizing a union of their own choosing. Thus, the purposes which motivated the creation of the I. M. U. by the Asso- ciation have been successfully accomplished; 95 indeed, so much so, that the respondents Sixth Vein Coal Corporation and Williams Coal Company were persuaded in 1936 to join The Operators' Asso- ciation in order to avail themselves of its benefits. We find that on and after July 5, 1935, the respondent, The Opera- tors' Association, in its own behalf and as agent for and in the interest of its members, including the respondents, Williams Coal Company, R.einecke Coal Mining Company, Grapevine Coal Com- pany, and Sixth Vein Coal Corporation, and further, acting in con- cert with the activities of these respondents, dominated and inter- fered with the administration of the I. M. U. and contributed sup- port to it; that in and by such acts, and each of them, the respondent has interfered with, restrained, and coerced employees of its members in the exercise of rights guaranteed them by Section 7 of the Act. 2. Interference with the right of self-organization guaranteed by Section 7 of the Act The afore-mentioned facts establish that The Operators' Associa- tion has continuously acted as an instrumentality of its members, by means of which they have deprived the employees of members of their rights to self-organization. The Operators' Association has combined and confederated with its members to this end. We, ac- cordingly, find that the respondent, The Operators' Association, on and after July 5, 1935, has interfered with, restrained, and coerced the employees of its members in the exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of each of the respondents, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, Sixth 114 See Sections III B 4, III C 1, III D 1, and III E 3, supra. 115Cf. National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 Ti. S. 272. WILLIAMS COAL COMPANY ET AL. 663 Vein Coal Corporation, and The Operators' Association set forth in Section III above, occurring in connection with the respective opera- tions of such respondent and/or the operations of the other re- spondents, and each of them, described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and have led to and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. The activities of the respondent, The Operators' Association, in its own behalf and/or as agent for and in the interest of its mem- bers, including said four other above-mentioned respondents, and/or in concert with the activities of said four respondents, and each of them set forth in said Section III above, occurring in connection with the operations of the respondent, The Operators' Association, and/or of said four respondents, and each of them, described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and have led to and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. The activities of the respondents, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corporation, and each of them, in concert and in connection with the activities of the respondent, The Operators' Association, set forth in said Section III above, and occurring in connection with the operations of all said respondents, and of each of them, described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and have led and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It is essential in order to effectuate the purposes and policies of the Act that the respondents be ordered to cease and desist from certain activities and practices in which we have found them to have engaged, and in aid of such order and as a means for remov- ing and avoiding the consequences of such activities and practices, that the respondents be directed to take certain affirmative action, more particularly described below. We have found that the respondent, The Operators' Association, acting in its own behalf- and as agent for and in the interest of its members, including the other respondents herein, and in concert with the activities of these respondents, has since July 5, 1935, dominated and interfered with the administration of the I. M. U. and con- tributed support to the I. M. U. We have also found that since 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 5, 1935, or thereafter, the respondents, Reinecke Coal Mining Company and Grapevine Coal Company, dominated and interfered with the administration of, and contributed support to, a local of the I. M. U. at their respective mines; that the respondent, Williams Coal Company, instigated, fostered, dominated, and interfered with, and the respondent, Sixth Vein Coal Corporation, dominated and interfered with, the formation and administration of a local of the I. M. U. at their respective mines and contributed support to it; and that all four respondent operators contributed support to the I. M. U. It is clear that all the respondents must cease and desist from these practices. Moreover, the effects and consequences of The Operators' Association's support, domination, and interference with respect to the I. M. U., as well as continued recognition by the Asso- ciation, for itself and as agent for its members, of the I. M. U. as bargaining representative of the employees of member operators, constitute and will constitute a continuing obstacle to the free exer- cise by the employees of members of the Association, including em- ployees of the four respondent operators, of their right of self-or- ganization and to bargain collectively through representatives of their own choosing. Equally, in view of the afore-mentioned activities and practices of the Reinecke Coal Mining Company, Grapevine Coal Company, Williams Coal Company, and Sixth Vein Coal Corpora- tion, severally and in connection with The Operators' Association, continued recognition or any dealings by any of these respondents individually or through the Association or otherwise, of or with the local of the I. M. U. at its respective mine or with the I. M. U., as representative of the employees of such respondent, will thwart such employees in the free exercise of their rights under the Act. In order to remove this obstacle to and thwarting of the exercise of rights guaranteed under the Act, we will order The Operators' Asso- ciation, as an association and as agent for the respondent operators herein, as well as the Reinecke Coal Mining Company, Grapevine Coal Company, Williams Coal Company, and Sixth Vein Coal Cor- poration, and each of them, directly, through the Association, or otherwise, subject, however, in the case of The Operators' Asso- ciation to the condition in our order set forth, to withdraw all recog- nition from the I. M. U. and any local of the I. M. U., and to dis- establish the same as a collective bargaining representative, as in our order set forth. We shall also order The Operators' Association as an association and as an agency of its members to cease and desist from further granting such recognition, 'subject to certain conditions in our order set forth. As heretofore found, The Operators' Association, for itself and as agent for its member operators, has entered into successive agreements WILLIAMS COAL COMPANY ET AL. 665 with the I. M. U. concerning wages, hours, and working conditions of employees of member operators, including the four respondent opera- tors. The last of these agreements, that of November 14, 1936, appar- ently expired July 1, 1938,19' after the hearing herein concluded. The record fails to show whether a contractual relationship similar to that which existed prior to July 1, 1938, between The Operators' Association, for itself and in behalf of its members, and the I. M. U. or any other contractual relationship between these parties, has con- tinued to or exists at the present. Nor is there any showing whether since that date the four operator respondents herein, or any of them, directly, through The Operators' Association or otherwise, have con- tinued, resumed, or entered into a contract with the I. M. U. or with the respective locals of the I. M. U. at their mines, relating to wages, hours, and working conditions of employees. From what has been previously set forth, it is manifest that the contractual relationship which was established and existed prior to July 1, 1938, between The Operators' Association and the I. M. U., and the terms of the agree- ments entered into by the Association with the I. M. U., including the closed-shop provision, have been part of the systematic utilization by the Association of an employer-created labor organization to stifle self-organization among and defeat collective bargaining by employees of member operators. It also is plain that this contractual relation- ship and the agreements were instrumentalities adopted by the four respondent operators herein for supporting, dominating, and inter- fering with the formation and administration of the locals of the I. M. U. at their respective mines, and the media for otherwise frustrat- ing the employees of these respondents in the exercise of rights guaran- teed by the Act. 1.97 Under these circumstances, any continuation or resumption of, or entering into, of a contractual relationship. respect- ing wages, hours, and working conditions, by The Operators' Associa- tion, for itself or for any of its members, with the I. M. U. Which may have occurred since July 1, 1938, or of any similar contractual relation- ship respecting such terms by any of the four respondent operators herein with the I. M. U. or with any local of the I. M. U., would, unless 198 The agreement , Section 1 (2), provides : "This agreement shall continue and remain in effect until July 1, 1938, and thereafter until a further agreement is reached between the parties altering or modifying this agreement " An amendment to the contract, exe- cuted April 26, 1937 , refers to the original agreement as "expiring July 1, 1938 " 197 This is illustrated by the circumstances under which the I M U. agreements , includ- ing the closed-shop provision , were enforced by the four operator respondents; by the requirement at the Reinecke Coal Mining Company , Williams Coal Company , and Sixth Vein Coal Corporation mines that employees bind themselves by individual contract with the employer to the outstanding I M. U. agreement ; by the attempt of the Grapevine Coal Company to justify its refusal to recognize and bargain with the U. M. W A through resort to the I. M. U. agreement ; by the attempt of the Sixth Vein Coal Corporation to avoid the consequences of its bleach of contract with the U. M. W. A. by becoming party, through the Association , to the I. M U. agreement ; and by other facts found above. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD removed, perpetuate the forces which have deprived employees of the rights guaranteed. However, only four of the members of The Opera- tors' Association have been made parties to this proceeding. Never- theless, to render our order of cease and desist, and of disestablishment, hereinafter, more effective, at least in so far as said four respondent operators are concerned, we will direct The Operators' Association and the respondent operators to cease giving effect to such contract or con- tracts, subject to such conditions as are set forth in our order. We shall likewise prohibit the making, renewing, or extending hereafter of such contractual relationships. We have found that the respondents, Reinecke Coal Mining Com- pany and Grapevine Coal Company, from and after July 5, 1935, the respondent, Sixth Vein Coal Corporation, from and after June 16, 1936, and the Williams Coal Company, from and after November 25, 1936, required of and compelled their respective employees at work in their mines, as a condition of employment, to acquiesce in a continuance of and otherwise to authorize a check-off from their wages, of dues to the I. M. U. and the I. M. U. locals. Moreover, since July 5, 1935, the Reinecke Coal Mining Company and Grape- vine Coal Company have required of certain employees, under similar compulsion, that they pay an initiation fee to the I. M. U.198 Since November 25, 1936, certain employees of Williams Coal Com- pany were subject, under like compulsion to payment of this initia- tion fee. The imposition of the check-off and the requirement of payment of initiation fees were in contravention of the statute and a consequence resulting from the determination of these respondents to prevent legitimate unionization. In order to make our order more effective, and within the authority of the statute, we will direct these respondents to reimburse their employees who thus have been coerced into making these payments. By thus restoring to these employees, so far as possible, the position in which they would have been had the respondents not deprived them of their rights under the Act, the policies of the Act will be effectuated 199 We have found that the respondent, Williams Coal Company, discriminated in regard to hire and tenure of employment, within 188 Although the evidence in the case of the Grapevine Coal Company discloses only the payment of initiation fees by employees hired prior to July 5, 1935, it is to be presumed that employees employed after the effective date of the Act were similarly subjected to the payment of an initiation fee. The 1933 and 1937 I. M. U. constitutions provide, in Article VIII, § 2, thereof, for the payment of an initiation fee In the case of the Sixth Vein Coal Corporation, there is no evidence that employees in fact were subject to payment of such fee or that an initiation fee was in fact collected. '139 Matter of The Heller Brothers Company o f Newcomers town and International Brother- hood of Blacksmtiths , Drop Forgers, and Helpers , 7 N. L. R . B 646; Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N. L. R. B. 244; Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 23, 10 N. L. R. B. 88. WILLIAMS COAL COMPANY ET AL. 667 the meaning of the Act, in discharging Linn Proffitt on August 25, 1935; in refusing to reinstate and discharging Clifton Oates about a month after October 29, 1935, Robert Penrod and Ernest Ford 2 or 3 weeks after October 29, 1935, and Dewitt Hoskins after Septem- ber 23, 1935, when he returned to the respondent to receive his last wages paid him by the respondent; and in discharging Richard Hunt on April 23, 1937, Ulysses Bacon, James Sharber, Claude Snorton, and Arthur Wicks on June 2, 1937, Roy Holmes, and Leslie Taylor on June 7, 1937, Willard Mudd on June 29, 1937, and Sam Mudd, Andrew Snorton, Oliver Flowers, and William Crick on June 30, 1937. Accordingly, we shall order said respondent to make these employees whole for any loss of pay they have suffered by reason of their respective discharges or their being refused reem- ployment, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge or such refusal of reemployment to the date of reinstatement or placement on a preferential list, as hereinafter provided, less his net earnings 100 during said period. However, inasmuch as the Trial Examiner failed to find discrimination with respect to the discharges of Oates, Penrod, Ford, and Hoskins, and to their being refused employment, the respondent, in accordance with our usual rule '201 will be relieved from paying each of said four employees back pay with respect to the period from the Trial Examiner's Intermediate Report, December 11, 1937, to the date of our order. Moreover, in fixing the date of the refusal to reinstate and of the discharge of these employees, for purposes of computing such back pay, our order will designate the last day of the found period within which such refusal to reinstate and discharge occurred. The above employees whom we shall order to be made whole, as well as the employees of said respondent, with one exception,202 who on September 23, 1935, went on strike or thereafter left their employ- ment to join the strike caused and prolonged by the respondent's re- fusal to bargain collectively with the U. M. W. A. and who have not 200 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 Amer- ica, Lumber and Sawmill 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 are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work -relief projects. 201 Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760, 767. aoa The exception referred to is Carlie Holmes . See footnote 203. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since been fully reinstated 203 shall, upon application, be reinstated by the respondent in the manner set forth below. We are of the opinion that the usual remedy in such cases is here necessary to effectuate the purposes and policies of the Act. Accordingly, Nye shall order the respondent, upon application, to offer these employees reinstatement to their former or substantially equivalent positions. All, or such number as may be necessary, of the employees hired by the respond- ent after the commencement of the strike on September 23, 1935, and not in the employ of the respondent when the strike began'204 shall be dismissed 205 to provide employment for those 200 to be offered, and who under our order apply for, reinstatement. If thereupon, de- spite such reduction in force, there is not sufficient employment im- mediately available for the employees presently employed by the respondent, excluding those so dismissed, and the employees to be offered and who apply for reinstatement, all available positions shall be distributed among the employees presently employed, except those so dismissed, and the employees to be offered reinstatement, in ac- cordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation and activities, following such a system of seniority or other procedure to such extent as has heretofore been applied in the con- duct of said respondent's business. In making such distribution the employees to be offered reinstatement 207 shall be considered as en- titled to the seniority and other rights and privileges which would have been theirs had they not gone on or joined the strike, or had they not been discharged or refused reinstatement by the said re- spondent. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon 203 Clifton Oates, Robert Penrod , Ernest Ford, and Dewitt Hoskins come within both gI oups of employees to be reinstated , viz employees to be made whole and employees who went on strike. For purposes of reinstatement , it is immaterial which group they be con- sidered in Each of the employees who went on strike September 23, 1935, or who there- after left his employment with the respondent to join the strike , is to be reinstated, irre- spective of whether his identity is shown by the record Appendix A is a list of such employees whom the record establishes to have gone on or joined the strike , including Oates, Penrod , Ford , and Hoskins , but excluding Carlie Holmes, who does not desire rein- statement, and who, therefore , shall not be ordered reinstated The following persons, who were named in the complaint as having been out on the strike , shall not be reinstated : Ernest Aldridge , who was discharged before the strike , Enos Martin , who was not an employee of the respondent , and Eugene Pendley, who quit before the strike 204Thiee employees among those we have found were discriminatorily discharged in June 1937 by the respondent, James Sharber, Sam Mudd , and William Crick , were first hired after September 23, 1935 For purposes, or in the event , of such dismissal, these three employees are to be considered in the same class as those subject to dismissal in order to provide employment for all other employees to be offered and who apply for rein- statement. However, as stated below and for reasons there discussed , in the event such dismissal , in effect, is operative as to then , they nevertheless will be placed upon the preferential list. 20National Labor Relations Board v. Remington Rand, Inc ., 94 F. (2d ) 862; 97 F (2d) 195 (C. C. A. 2) ; 304 U S. 576. 200 See footnote 204. 207 See footnote 204. WILLIAMS COAL COMPANY ET AL. 669 a preferential list with priority determined among them by such system of seniority or other procedure as has been heretofore followed by the said respondent, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equiva- lent positions , as such employment becomes available and before other persons are hired for such work. It appears that three of the employees discriminatorily discharged by the respondent in June 1937 , James Sharber, Sam Mudd, and Wil- liam Crick were hired by the respondent after the commencement of the strike on September 23, 1935, and were not in the employ of the respondent when the strike began. Therefore , they are to be considered as occupying the same status , for purposes of employment, as em- ployees who are subject to being dismissed upon the contingencies afore-mentioned , because of their having been hired after the strike and not having been employed when the strike began. However, in the case of these three employees , to remedy the respondent's unfair labor practices with respect to them, they shall , if no positions be otherwise available to them, nevertheless be placed upon said preferential list. Moreover, we shall order the said respondent upon any refusal by it to offer reinstatement , upon application , to any of the employees who, on September 23, 1935, went on or thereafter joined the strike, to whom we shall order that such an offer of reinstatement be made, excluding Ford, Carlie Holmes, Hoskins, Oates, and Penrod'208 to make such em- ployee whole for any loss of wages thereby sustained , by payment to him of an amount of money equal to that which he normally would have earned as wages during the period from 5 days after the date of application to the date he is offered reinstatement or placed on a pref- erential list, less his net earnings during said period. We also have found that said respondent refused to bargain col- lectively with the U. M. W. A. and the U. M. W. A. local as representa- tive of its employees. In view of the fact that this refusal occurred more than 3 years ago , and we have not determined , for reasons here- tofore set forth, whether that labor organization represented a major- ity of said employees in an appropriate unit in 1937 , we shall, under these circumstances , refrain from directing affirmatively the respondent to bargain collectively with the U. M. W. A. However , we shall order it to cease and desist from engaging in such practice with any labor organization representing its employees for collective bargaining pur- poses under the Act. We shall also order it to cease and desist from certain other activities in which it has engaged. We have found that the respondent, Reinecke Coal Mining Com- pany, discriminated in regard to hire and tenure of employment , within the meaning of the Act, in discharging John Bowles on February 15, 208 These employees are treated separately. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1937, Henry Hodge on June 9, 1937, William Hamilton on June 14, 1937, Jim Stone on June 30, 1937, and Robert Jordan on June 30, 1937. We shall order the said respondent to offer to these employees imme- diate reinstatement to their former or substantially equivalent posi- tions and to make them whole for any loss of pay they have suffered by reason of their respective discharges, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period. We also shall order the said respondent to cease and desist from certain practices in which it has engaged, and to take certain other action. We have found that the respondent, Grapevine Coal Company, dis- criminated in regard to hire and tenure of employment by locking out its employees on or about May 22, 1937, and keeping them locked out thereafter. We, therefore, will order the respondent to make whole all of its said employees for any loss of pay they may have suffered by reason of the lock-out by payment to each of them of a sum of money equal to the amount which he or she normally would have earned as wages from May 22, 1937, to the date of the offer of reinstatement by the respondent, hereinafter referred to, less his or her net earnings during said period. Our order will also take into account other con- tingencies. The Trial Examiner found that the respondent's lock-out of its employees contravened Section 8 (1) of the Act, but not Section 8 (3), and, consequently, did not recommend an allowance of back pay. In view of this circumstance, we shall, in the exercise of our discretion, not require the respondent to pay each of said employees an amount equal to the amount he or she normally would have earned as wages from the date of the Trial Examiner's Intermediate Report, Decem- ber 8, 1937, to the date of our order. The respondent's mine and business were still closed at the time of the hearing herein. We will order the respondent to offer, either immediately, if the mine is now operating, or upon the reopening of such mine, if it is still closed, to all said employees who have not been fully reinstated, reinstatement to their former or substantially equivalent positions. All or such number as may be necessary of the employees, if any, hired by the respondent after the commencement of the lock-out on or about May 22, 1937, and not in the employ of the respondent when the lock-out began, shall be dismissed, to pro- vide employment for those to be offered and who accept reinstate- ment. If, thereupon, there is not sufficient employment immediately available for all the employees ordered to be offered and who accept reinstatement and the employees, if any, who were locked out and already fully reinstated, all positions of employment shall be distrib- uted among these employees in accordance with the respondent' s usual WILLIAMS COAL COMPANY ET AL . 671 method of reducing its force, without discrimination against any employee because of his union affiliation and activities, following such a system of seniority or other procedure as has heretofore been applied in the conduct of the said respondent's business. Those em- ployees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list with priority determined among them in accordance with said system of seniority or other procedure, and shall thereafter, in accordance with such list, be offered reinstatement in their former or substan- tially equivalent positions, as such employment becomes available and before other persons are hired for such work. We also have found that the said respondent refused to bargain collectively with the U. M. W. A. Our order shall require the re- spondent so to do. It also will direct the respondent to cease and desist from certain of its activities, and take certain other affirmative action. We have found that the Sixth Vein Coal Corporation on June 16, 1936, discriminated in regard to hire and tenure of employment by discharging and refusing to employ, except on an illegal condi- tion, those of its employees who had gone on strike on April 1, 1936, or thereafter prior to June 16, 1936, and were still on strike on said June 16. We have listed in Appendix B the names of such employees whom the record shows come within this group. However, such list is not necessarily exclusive, nor shall our order be construed as con- fined to the employees so named. These employees should be made whole for any loss of wages they have suffered after June 16, 1936, in consequence of the aforesaid discrimination which rendered their return to work, except on the illegal condition, impossible. To fully effectuate the purposes of the Act, this loss of wages which resulted directly from the respondent's illegal conduct must be remedied, in order that the situation of the employees as it would have existed, absent the respondent's unfair labor practices, may be fully restored. Such loss shall be ascertained and computed as follows : The re- spondent shall pay to each of the persons in its employ who went on strike on April 1, 1936, or thereafter prior to June 16, 1936, and was on strike on June 16, 1936, when the illegal condition was imposed, an amount equal to that which he normally would have earned as wages from and after June 16, 1936, excluding the period hereinafter men- tioned, to the date of the offer of reinstatement, mentioned below, less his net earnings (a) had the respondent, in order to provide employ- ment for the employees to be made whole, refrained from employing, at all times after June 16, 1936, to the extent necessary, any and all persons hired by it after June 16, 1936, excluding persons in its em- ploy either on March 31, 1936, or during the period from March 31, 1936, to June 16, 1936, and (b) had the respondent on June 17, 1936, 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstated the employees to be made whole in the positions then available and thereafter in other positions from time to time as and when such other positions became or would have been available, which positions were either the same or substantially equivalent to the positions held by them on March 31, 1936, or on the date prior to June 16, 1936, when they left the respondent's employment to join the strike, or which available positions they were qualified to fill, follow- ing such system of seniority or other procedure as theretofore applied by it in the conduct of its business. - Some striking employees have received full reinstatement by the respondent subsequent to June 16, 1936. The record discloses the names of 12 such persons and these names are listed in Appendix D. However, this list is not necessarily exclusive and shall not be so considered. Each of the striking em- ployees who have been so reinstated prior to our order shall be en- titled to back pay, ascertained and computed according to the above procedure, only until the respective date of his said reinstatement, ex- cluding the period mentioned below. Inasmuch as some of the em- ployees whom we have ordered to be made whole may have obtained since June 16, 1936, regular and substantially equivalent employment elsewhere and do not desire reinstatement, such employees shall be made whole, in accordance with the above procedure, until they ob- tained such employment, and for purposes of determining the per- sons to be made whole and the respective amounts, to be paid under the above, the positions which such employees otherwise would have occupied shall be deemed vacated upon the securing of such other employment. Since the Trial Examiner failed to find a violation of Section 8 (3) of the Act or recommend back pay, we shall, in the ex- ercise of our discretion, not require the respondent in such cases where it is relevant to pay any striking employees the money we otherwise would have ordered him paid, equal to the amount he nor- mally would have earned as wages from the date of the Trial Ex- aminer's Intermediate Report, December 11, 1937, to the date of our order. In Appendix C there are listed the names of employees who, the record shows, were on strike June 16, 1936, and have not been re- instated. This list is not necessarily exclusive, and should not be so considered. We find with respect to each of the persons listed in Appendix C that at the time he went on strike he was earning as wages with the respondent the amount of money, per day, for the number of days per week, indicated in said Appendix opposite his name. We further find that the earnings of each said employee from April 1, 1936, until the time of the hearing is the amount set oppo- site his name in said Appendix. In Appendix D there are listed the names of employees who, the record shows, were on strike) on June 16, 1936, and have since been 0 WILLIAMS COAL COMPANY LT AL. 673 reinstated by the respondent. This list is not exclusive. We find with respect to each of these persons listed on Appendix D that he was reinstated by the respondent on the date stated opposite his name on said Appendix. We further find that at the time such employee went on strike he was earning as wages with the respondent the amount of money, per day, for the number of days per week, indi- cated in said Appendix opposite his name. We further find that the earnings of said employee from April 1, 1936, until the time of his reinstatement, is the amount set forth opposite his name in said Appendix. Since the said respondent discriminated in regard to the hire and tenure of employment of those of its employees who went on- strike April 1, 1936, or thereafter left their employment prior to June 16, 1936, to join said strike and were on strike June 16, 1936, we shall order the respondent, to offer reinstatement to their former or sub- stantially equivalent positions, or if no such position be available then to positions for which they may be qualified, to those of these employees who have not been fully reinstated .21,9 All, or such num- ber as may be necessary, of the employees presently working for the respondent who were hired after June 16, 1936, and were not in its employ at the commencement of the strike, or were not employed by the respondent during the period between that time and June 16, 1936, shall be dismissed, to provide employment for those to be offered and who shall accept reinstatement. If thereupon, despite such dis- missal, there is not sufficient employment immediately available for all of said employees to be offered and who shall accept reinstatement, all available positions, if any, shall be distributed among such em- ployees, without discrimination against any employee because of his union affiliation or activities, following such system of seniority or other procedure as has heretofore been applied in similar instances in the conduct of the respondent's business. Those of such em- ployees for whom no employment is immediately available and those who are reinstated only to positions for which they were qualified but not to their former or substantially equivalent positions, shall be placed on a preferential list prepared in accordance with such sys- tem of seniority or other procedure, and shall thereafter, in accord- ance with such list, be offered reinstatement in their former or sub- stantially equivalent positions, as such employment becomes available and before other persons are hired for such work. We also shall order the said respondent, Sixth Vein Coal Corpora- tion, to cease and desist from certain other practices in which we have found it to engage. 209 See Appendix C for the names of certain of these employees. This list is not exclusive. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing facts, and upon the entire record in this proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. United Mine Workers of America, District No. 23, Independent Miners' Union of Western Kentucky, District No. 1, and the respec- tive locals of each said organization at the mines of the respondents, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corporation, are labor organi- zations, within the meaning of Section 2 (5) of the Act. 2. The respondent, The Operators' Association, is an employer, within the meaning of Section 2 (2) of the Act. 3. By interfering with, restraining, and coercing employees of member operators, including employees of the other respondents herein, in the exercise of the rights guaranteed in Section 7 of the Act, the respondent, The Operators' Association, in its own behalf and as agent for and in the interest of said member operators, and independent thereof, acting in concert with the activities of the other respondents herein, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. By interfering with, restraining, and coercing their respective employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corpora- tion, and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. By dominating and interfering with the administration of and contributing support to, Independent Miners' Union of Western Ken- tucky, District No. 1, the respondent, The Operators' Association, in its own behalf and as agent for and in the interest of its members, and independent thereof, acting in concert with the activities of the other respondents herein, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 6. By instigating, fostering, dominating and interfering with the formation and administration of a local of the Independent Miners' Union of Western Kentucky, District No. 1, at its mine, and contribut- ing support to it and to Independent Miners' Union of Western Ken- tucky, District No. 1, the respondent, Williams Coal Company, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 7. By dominating and interfering with the administration of a local of Independent Miners' Union of Western Kentucky, District No. 1, at their respective mines, and contributing support to it and to Independent Miners' Union of Western Kentucky, District No. 1, the WILLIAMS COAL COMPANY ET AL. 675 respondents, Reinecke Coal Mining Company and Grapevine Coal Company, and each of them, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 8. By dominating and interfering with the formation and admin- istration of a local of Independent Miners' Union of Western Ken- tucky, District No. 1, at its mine, and contributing support to it and to Independent Miners' Union of Western Kentucky, District No. 1, the respondent, Sixth Vein Coal Corporation, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act., 9. By discriminating in regard to the terms and conditions of em- ployment of their respective employees, thereby encouraging member- ship in Independent Miners' Union of Western Kentucky,-District No. 1, and the locals of said organization at their respective mines, and discouraging membership in any other labor organization, including United Mine Workers of America, District No. 23, the respondents, Williams Coal Company, Reinecke Coal Mining Company, and Grape- vine Coal Company, and each of them, have engaged in and are en- gaging in unfair labor practices, within, the meaning of Section 8 (3) of the Act. 10. By discriminating in regard to the terms and conditions of em- ployment of its employees both at work and on strike thereby en- couraging membership in Independent Miners' Union of Western Ken- tucky, District No. 1, and the local of said organization at its mine, and discouraging membership in any other labor organization, includ- ing United Mine Workers of America, District No. 23, the respondent, Sixth Vein Coal Corporation, has engaged in and is engaging-in un- fair labor practices, within the meaning of Section 8 (3) of the Act. 11. By discriminating in regard to the hire and tenure of employ- ment of its employees, Linn Proffitt, Clifton Oates, Robert Penrod, Ernest Ford, Dewitt Hoskins, Richard Hunt, Ulysses Bacon, James Sharber, Claude Snorton, Arthur Wicks, Roy Holmes, Leslie Taylor, Willard Mudd, Sam Mudd, Andrew Snorton, Oliver Flowers, and William Crick, and each of them, thereby encouraging membership in Independent Miners' Union of Western Kentucky, District No. 1, and discouraging membership in any other labor organization, includ- ing United Mine Workers of America, District No. 23, the respondent, Williams Coal Company, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 12. By discriminating in regard to the hire and tenure of employ- ment of John Bowles, Henry Hodge, William Hamilton, Jim Stone, Robert Jordan, and each of them, thereby encouraging membership in Independent Miners' Union of Western Kentucky, District No. 1, and discouraging membership in any other labor organization, in- 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eluding United Mine Workers of America, District No. 23, the re- spondent, Reinecke Coal Mining Company, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 13. By discriminating in regard to the hire and tenure of employ- ment of all its employees, thereby encouraging membership in Inde- pendent Miners' Union of Western Kentucky, District No. 1, and discouraging membership in any other labor organization, including United Mine Workers of America, District No. 23, the respondent, Grapevine Coal Company, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 14. By discriminating in regard to the hire and tenure of employ- ment of its employees who were on strike June 16, 1936, including the persons named in Appendix B, thereby encouraging membership in Independent Miners' Union of Western Kentucky, District No. 1, and discouraging membership in any other labor organization, in- cluding United Mine Workers of America, District No. 23, the re- spondent, Sixth Vein Coal Corporation, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 15. The mining employees of the respondents, Williams Coal Com- pany and Grapevine Coal Company, excluding foremen, bosses, and other supervisory employees, technical help, clerical force, and com- pany executives, constituted and constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 16. United Mine Workers of America, District No. 23, was in July 1935 and thereafter in 1935, the exclusive representative of all em- ployees of the respondent, Williams Coal Company, in such unit, for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 17. By refusing in August and/or September 1935 to bargain col- lectively with United Mine Workers of America, District No. 23, as the exclusive representative of all its said employees in such unit, the respondent, Williams Coal Company, has engaged in unfair labor practices, within the meaning of Section 8 (5) of the Act. 18. United Mine Workers of America, District No. 23, is and at all times on and after June 29, 1937, has been the exclusive repre- sentative of all employees of the respondent, Grapevine Coal Com- pany, in such unit, for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 19. By refusing on or about June 29, 1937, and ever since, to bar- gain collectively with United Mine Workers of America, District No. 23, as the exclusive representative of all its said employees in such unit, the respondent, Grapevine Coal Company, has engaged WILLIAMS COAL COMPANY ET AL. 677 in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 20. The aforesaid unfair labor practices, and each of them, are unfair labor practices affecting commerce, within the meaning of Sec- tion 2 (6) and (7) of the Act. 21. The respondent, Williams Coal Company, has not discrimi- nated in regard to the hire and tenure of employment of the 58 per- sons alleged in the complaint as having been on strike on or after September 23, 1935, except Clifton Oates, Robert Penrod, Ernest Ford, and Dewitt Hoskins, and has not discriminated in regard to the hire and tenure of employment of Roy Sharber and Flem Snorton, Jr., within the meaning of Section 8 (3) of the Act. 22. The respondent, Sixth Vein Coal Corporation, has not dis- criminated in regard to the hire and tenure of employment of the persons named in Appendix E, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, The Operators' Association, Madisonville, Kentucky, acting for itself, or as agent for or in the interest of the members of said respondent, and the officers, agents, successors, and assigns of said respondent, shall: 1. Cease and desist from: (a) In any manner interfering with, restraining, or coercing the employees of the members of said respondent, including the em- ployees of the respondents, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corporation, respectively, in the exercise of the right to self-organi- zation, to form, join or assist labor 'organizations, to bargain collec- tively through representatives of their own choosing and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act; (b) In any manner combining, confederating or advising, directly or indirectly, with any member of said respondent, for the purpose of interfering with, restraining, or coercing the employees of a member of said respondent in the exercise of the right to self=organi- zation, to form, join or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act; (c) In any manner dominating or interfering with the administra- i ion of, or contributing support to, Independent Miners' Union of 164275-39-vol, xi--44 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western Kentucky, District No. 1, as a labor organization of the employees of the members of said respondent, including the em- ployees of the respondents, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corporation, respectively; and with the formation or administration of, or contributing support to, any other labor organization of such employees ; (d) Recognizing or granting recognition to Independent Miners' Union of Western Kentucky, District No. 1, as a representative of the employees of the members, or of any member, of said respondent, The Operators' Association, including the employees of the respondent operators, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corporation, and each of them, for the purpose of dealing with said respondent, The Operators' Association, for itself or as agent for or in the interest of the members of said respondent or of any of said members, concern- ing grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment; provided, however, that nothing in this paragraph shall affect the rights of any member of said respondent, The Operators' Association (except the rights of the said four respondent operators, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corporation, and each of them, whose rights may be so affected), under any contract existing at the date of this order entered into by said respondent, The Operators' Association, or by any of its said members (except said four respondent operators, and each of them) with Independent Miners' Union of Western Kentucky, Dis- trict No. 1, or with any local of said Independent Miners' Union of Western Kentucky, District No. 1 (except the locals of Independent Miners' Union of Western Kentucky, District No. 1, at the mines of said four respondent operators, or any of them) ; (e) Giving effect to or performing any and all contracts or ar- rangements now existing between The Operators' Association and Independent Miners' Union of Western Kentucky, District No. 1, relating to rates of pay, wages, hours of employment, or other con- ditions of employment, in so far as the terms and conditions of such contracts or arrangements apply to the employees of the respond- ents, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corporation, or any of said respondents; (f) Hereafter entering into, renewing or extending, directly or indirectly, any contract or arrangement with Independent Miners' Union of Western Kentucky, District No. 1, relating to rates of pay, wages, hours of employment, or other conditions of employment of the employees of any or all the members of said respondent. WILLIAMS COAL COMPANY ET AL. 679 2. And it is further ordered that the respondent, The Operators' Association, and its officers, agents, successors, and assigns, shall take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition which said respondent as an asso- ciation has granted Independent Miners' Union of Western Ken- tucky, District No. 1, as a representative of persons employed at the respective mines or in the businesses of the members, or of any member, of said respondent, for the purpose of dealing with said respondent, as an association, concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment and as such association disestablish said Independent Miners' Union of Western Kentucky, District No. 1, as such repre- sentative; provided, however, that nothing in this paragraph shall affect the rights of any member of said respondent (except the rights of the respondents, Williams Coal Company, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corpora- tion, and each of them, whose-rights may be so affected) under any contract existing at the date of this order entered into by said re- spondent or any of its members with Independent Miners' Union of Western Kentucky, District No. 1, or with any local of said Inde- pendent Miners' Union of Western Kentucky, District No. 1; (b) Withdraw all recognition which said respondent, as agent for and in the interest of the respondent operators, Williams Coal Com- pany, Reinecke Coal Mining Company, Grapevine Coal Company, and Sixth Vein Coal Corporation, and each of them, has granted Independent Miners' Union of Western Kentucky, District No. 1, as a representative of the employees of said respondent operators, and each of them, for the purpose of dealing with said respondent as agent for and in the interest of said respondent operators, con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; and as such agent disestablish Independent Miners' Union of Western Kentucky, Dis- trict No. 1, as such representative, if it be within the power and authority of said respondent, The Operators' Association, so to do; (c) Notify the Regional Director for the Eleventh Region in writ- ing within twenty (20) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FU }IER ORDERED that'leave be, and it hereby is, granted to the Regional Director for the Eleventh Region to serve a copy of this Decision and Order upon each of the members of said respondent, The Operators' Association. Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- 680 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent, Williams Coal Company, Mannington, Kentucky, individ- ually, or acting through the respondent, The Operators' Association, or otherwise, and the officers, agents, successors, and assigns of the respondent, Williams Coal Company, shall: 1. Cease and desist from : (a) In any manner interfering 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 or other mutual aid or protection, as guaranteed in Section 7 of the Act; (b) In any manner dominating or interfering with the administra- tion of the local of Independent Miners' Union of Western Kentucky, District No. 1, at its mine, with the administration of said Independent Miners' Union of Western Kentucky, District No. 1, or with the forma- tion or administration of any other labor organization of its em- ployees; and in any manner contributing support to said local, to said Independent Miners' Union of Western Kentucky, District No. 1, or to any other labor organization of its employees; (c) Giving effect to or performing any contract or arrangement now existing, and refrain from entering into, renewing, or extending any contract or arrangement, relating to rates of pay, wages, hours of employment, or other conditions of employment, to which Independent Miners' Union of Western Kentucky, District No. 1, or any local thereof, is a. party, as representative of the employees of said respond- ent, Williams Coal Company; (d) Discouraging membership in United Mine Workers of America, District No. 23, or encouraging or discouraging membership in any other labor organization of its employees, by discharging or refusing to reinstate employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condi- tion of employment; (e) Refusing to bargain collectively with the representative or representatives of its employees designated or selected by a majority of such employees within the appropriate collective bargaining unit for the purposes of bargaining collectively with said respondent in respect to rates of pay, wages, hours of employment, or other condi- tions of employment. 2. Take the following affirmativd action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Independent Miners' Union of Western Kentucky, District No. 1, and any local thereof, as representa- tive of its employees for the purpose of dealing with said respondent, directly or through the respondent, The Operators' Association, or any other person or agency of said respondent, Williams Coal Company, WILLIAMS COAL COMPANY ET AL. 681 concerning grievances, labor disputes, wages, rates of pay, hours of em- ployment, or other conditions of employment; and completely dises- tablish Independent Miners' Union of Western Kentucky, District No. 1, and any local thereof as such representative; (b) Pay each person in its employ after November 25, 1936, an amount of money equal to the sum of all dues and initiation fees which it has deducted from the wages, salaries, or other earnings of such person since November 25, 1936, on behalf of Independent Miners' Union of Western Kentucky, District No. 1, and on behalf of any local of that organization; (c) Offer, upon application, to Ulysses Bacon, William Crick. Oliver Flowers, Ernest Ford, Roy Holmes, Dewitt Hoskins, Richard Hunt, Sam Mudd, Willard Mudd, Clifton Oates, Robert Penrod, Linn Proffitt, James Sharber, Andrew Snorton, Claude Snorton, Leslie Taylor, and Arthur Wicks, and to all persons in its employ on Septem- ber 23, 1935, who went on strike on September 23, 1935, or who there- after left their employment with the respondent to join said strike, including the employees listed in Appendix A, but excluding Carlie Holmes, who have not been fully reinstated, reinstatement to their former 210 or substantially equivalent positions with the respondent, without prejudice to their seniority and other rights and privileges. All of the employees presently working for the respondent who were hired since September 23, 1935, and not in its employ on September 23, 1935, shall, if necessary, be dismissed to provide employment for the above employees ordered to be offered and who apply for reinstate- ment, provided, however, that no such employee need be so dismissed to provide employment for Crick, Sam Mudd, or James Sharber. If, for such purpose, it is necessary to dismiss some but not all such em- ployees, such number as may be necessary shall be dismissed by the re- spondent, provided, that in determining which employees shall be dis- missed, Crick, Sam Mudd, and James Sharber shall be included among the class of employees subject to dismissal, such dismissal proceeding from among all in the class on a non-discriminatory 211 basis, and the positions which remain after dismissal shall be distributed by the re- spondent on a non-discriminatory basis among those in the class not dismissed. If despite and after a dismissal of all employees presently working for the respondent who were hired since September 23, 1935, and not in its employ on September 23, 1935, there is not sufficient employment immediately available for the employees presently work- ing for the respondent, excluding those dismissed, and for the em- ployees above ordered to be offered and who apply for reinstatement, 210 By former position is meant the respective position held at the time of discrimina- tory discharge, or of going on or joining the strike . With respect to Proffitt, this means the position he held on August 25, 1935, when his discharge occurred. 211 That is , Ni ithout discrimination against any employee or any group of employees be- cause of union affiliation or activities. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding Crick, Sam Mudd, and James Sharber, then all positions of employment shall be distributed by the respondent among the em- ployees presently working for it, excluding those dismissed, and the employees above ordered to be offered or who apply for reinstatement, excluding Crick, Sam Mudd, and James Sharber, in accordance with the respondent's usual method of reducing its force, without discrimi- nation against any employee because of his union affiliation and activi- ties, following such a system of seniority or other procedure as has been heretofore applied by the respondent in the conduct of its busi- ness. Those employees remaining after such distribution for whom no employment is immediately available, shall be placed by the re- spondent on a preferential list, with priority determined among them in accordance with such system of seniority or other procedure as has been heretofore applied by the respondent in the conduct of its busi- ness, and thereafter, in accordance with said list shall be offered rein- statement by the respondent in their former or substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. If Crick, Sam Mudd, and James Sharber are not afforded immediate reinstatement pursuant to the above, their names shall be added to said list, for the purposes thereof, but subordinate in position to the above employees thereon; (d) Make whole the following named employees for any loss of pay they have suffered by reason of their respective discharges by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge, said date being indicated after his name, to the date of his reinstatement or placement on a preferential list pursuant to para- graph (c) above, less his net earnings 212 during said period; de- ducting, however, from the amount otherwise due to each such employee, monies received by him during said period for work per- formed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other gov- ernment or governments which supplies the funds for said work- relief projects: Ulysses Bacon-June 2, 1937; William Crick-June 30, 1937; Oliver Flowers-June 30, 1937; Roy Holmes-June 7, 1937; Richard Hunt-April 23, 1937; Sam Mudd-June 30, 1937; Willard Mudd-June 29, 1937; Linn Proffitt-August 25, 1935; James Shar- ber-June 2, 1937; Andrew Snorton-June 30, 1937; Claude Snor- ' ton-June 2, 1937; Leslie Taylor-June 7, 1937; Arthur Wicks-June 2, 1937; (e) Make whole Ernest Ford, Dewitt Hoskins, Clifton Oates, and Robert Penrod for any loss of pay they may have suffered by reason n2 See footnote 200, supra. WILLIAMS COAL COMPANY ET AL. 683 of their being refused reinstatement and being discharged, by pay- ment to each of them a sum of money equal to the amount which he normally would have earned as wages from the date of his being respectively refused reinstatement and being discharged, said date being indicated after his name hereafter, to December 11, 1937, and from the date of this Order to his reinstatement or placement on a preferential list pursuant to paragraph (c) above, less his net earn- ings 213 during said periods; deducting, however, from the amount otherwise due to each such employee, monies received by him during said periods for work performed upon Federal, State, county, munici- pal, or other work-relief projects, and pay over the amount, so de- ducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects : Clifton Oates-November 29, 1935; Robert Penrod-November 19, 1935; Ernest Ford-November 19, 1935; Dewitt Hoskins-the date after September 23, 1935, when said Hoskins returned to the respondent to receive the last wages paid him for services; (f) Make whole all persons, or such of them as the case may be, in its employ on September 23, 1935, who went on strike September 23, 1935, or who thereafter left such employment to join said strike, including the employees listed in Appendix A, but excluding Ernest Ford, Carlie Holmes, Dewitt Hoskins, Clifton Oates, and Robert Pen- rod, for any loss of pay they, or any of them, will have suffered by reason of a refusal by the respondent to offer them, or any of them, reinstatement, upon application, in accordance with paragraph (c) above, following the issuance of this Order, by payment to each such employee so refused, of a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date of such application for reinstatement to the date he is offered reinstatement or placed upon the preferential list required by paragraph (c) above, less his net earnings 214 during said period; deducting, however, from the amount thus to become owed to him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or gov- ernments which supplied the funds for said work-relief projects; (g) Immediately post notices in conspicuous places in and around its mine, and maintain such notices for a period of thirty (30) con- secutive days, stating that the respondent will cease and desist in manner set forth in 1 (a), (b), (c), (d), and (e) and that it will take = See footnote 200, supra. 214 See footnote 200, supra. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the affirmative action set forth in 2 (a), (b), (c), (d), (e), and (f) of this Order; (h) Notify the Regional Director for the Eleventh Region in writing within twenty (20) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the allegations of the complaint against the respondent, Williams Coal Company, in so far as they allege that said respondent discriminated in regard to hire and tenure of employment by refusing to put back to work certain named em- ployees who went on strike on or about September 23, 1935, shall, except as they concern Ernest Ford, Dewitt Hoskins, Clifton Oates, and Robert Penrod, be, and the same hereby are, dismissed. AND IT IS FURTHER ORDERED that the allegations of said complaint in so far as they allege that said respondent on and after May 13, 1937, refused to bargain collectively with United Mine Workers of America, District No. 23, be, and the same hereby are, dismissed, without prejudice. AND IT IS FURTHER ORDERED that certain membership and applica- tion cards of United Mine Workers of America, District No. 23, introduced in evidence as Board Exhibit No. 32,215 shall, upon written request made by that organization to the National Labor Relations Board, Washington, D. C., within ten (10) days from the date of this Order, be withdrawn from, and shall no longer be part of, the record herein, and, thereupon, said cards shall be returned to United Mine Workers of America, District No. 23. Pending such request, said cards shall not be available for any purpose, to any party, unless said Board shall so order. Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Reinecke Coal Mining Company, Madisonville, Kentucky, individually, or acting through the respondent, The Operators' Asso- ciation, or otherwise, and the officers, agents, successors, and assigns of the respondent, Reinecke Coal Mining Company, shall: 1. Cease and desist from : (a) In any manner interfering 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 or other mutual aid or protection, as guaranteed in Section 7 of the Act; (b) In any manner dominating or interfering with the administra- tion of the local of Independent Miners' Union of Western Kentucky, "' These are the memhecship and application cards i eferred to in Section III B 6, supra WILLIAMS COAL COMPANY ET AL. 685 District No. 1, at its mine, with the administration of said Inde- pendent Miners' Union of Western Kentucky, District No. 1, or with the formation or administration of any other labor organization of its employees; and in any manner contributing support to said local, to said Independent Miners' Union of Western Kentucky, District No. 1, or to any other labor organization of its employees; (c) Giving effect to or performing any contract or arrangement now existing, and refrain from entering into, renewing, or extend- ing any contract or arrangement, relating to rates of pay, wages, hours of employment, or other conditions of employment, to which Independent Miners' Union of Western Kentucky, District No. 1, or any local thereof, is a party, as representative of the employees of said respondent, Reinecke Coal Mining Company; (d) Discouraging membership in United Mine Workers of Amer- ica, District No. 23, or encouraging or discouraging membership in any other labor organization of its employees, by discharging or refusing to reinstate employees, or in any other manner discriminat- ing in regard to their hire and tenure of employment, or any term or condition of employment. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Independent Miners' Union of Western Kentucky, District No. 1, and any local thereof, as repre- sentative of its employees for the purpose of dealing with said respondent, directly or through the respondent, The Operators' Asso- ciation, or any other person or agency of said respondent, Reinecke Coal Mining Company, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment; and completely disestablish Independent Miners' Union of Western Kentucky, District No. 1, and any local thereof, as such representative; (b) Pay each person in its employ after July 5, 1935, an amount of money equal to the sum of all dues and initiation fees which it has deducted from the wages, salaries, or other earnings of such person since July 5, 1935, on behalf of Independent Miners' Union of Western Kentucky, District No. 1, and on behalf of any local of that organization ; (c) Offer to John Bowles, William Hamilton, Henry Hodge, Robert Jordan, and Jim Stone, immediate and full reinstatement to their former or substantially equivalent positions, respectively, with- out prejudice to their seniority and other rights and privileges and make said employees whole for any loss of pay they have suffered by reason of their respective discharges by payment to each of them of a sum of money equal to the amount which he normally would have 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earned as wages from the date of his discharge 21b to the date of the offer of reinstatement, less his net earnings 217 during said period; deducting, however, from the amount otherwise due to each of such employees, monies received by him during said periods for work performed upon Federal, State, county, municipal, or other work- relief projects, and pay over the amounts, so deducted, to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects; (d) Immediately post notices in conspicuous places in and around its mine, and maintain such notices for a period of thirty (30) con- secutive days, stating that the respondent will cease and desist in manner set forth in 1 (a), (b), (c), and (d),, and that it will take the affirmative action set forth in 2 (a), (b), and (c) of this Order; (e) Notify the Regional Director for the Eleventh Region in writing within twenty (20) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the allegations of the amended complaint against the respondent, Reinecke Coal Mining Company, in so far as they allege that said respondent on and after June 9, 1937, refused to bargain collectively with United Mine Workers of Amer- ica, District No. 23, be, and the same hereby are, dismissed, without prejudice. AND IT IS FURTHER ORDERED that certain membership and application cards of United Mine Workers of America, District No. 23, introduced in evidence as Board Exhibit No. 33,218 shall, upon written request made by that organization of the National Labor Relations Board, Washington, D. C., within ten (10) days from the date of this Order, be withdrawn from and shall no longer be part of, the record herein, and thereupon, said cards shall be returned to United Mine Workers of America, District No. 23. Pending such request said cards shall not be available for any purpose, to any party, unless said Board shall so order. Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Grapevine Coal Company, Madisonville, Kentucky, indi- vidually, or acting through the respondent, The Operators' Associa- tion, or otherwise, and the officers, agents, successors, and assigns of the respondent, Grapevine Coal Company, shall : 218 The respective dates of the discharges of these employees are as follows : John Bowles-February 15, 1937; William Hamilton-June 14, 1937 ; Henry Hodge-June 9, 1937; Robert Jordan-June 30, 1937; and Jim Stone-Jume 30, 1937. °'1 See footnote 200, supra. 218 These are the membership and application cards referred to in Section III C 3, supra. WILLIAMS COAL COMPANY ET AL. 687 1. Cease and desist from : (a) In any manner interfering 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 or other mutual aid or protection, as guaranteed in Section 7 of the Act; (b) In any manner dominating or interfering with the administra- tion of the local of Independent Miners' Union of Western Kentucky, District No. 1, at its mine, with the administration of said Inde- pendent Miners' Union of Western Kentucky, District No. 1, or with the formation or administration of any other labor organization of its employees; and in any manner contributing support to said local, to said Independent Miners' Union of Western Kentucky, District No. 1, or to any other labor organization of its employees; (c) Giving effect to or performing any contract or arrangement now existing, and refrain from entering into, renewing, or extending any contract or arrangement, relating to rates of pay, wages, hours of employment or other conditions of employment, to which Independent Miners' Union of Western Kentucky, District No. 1, or any local thereof, is a party, as representative of the employees of said re- spondent, Grapevine Coal Company; (d) Discouraging membership in United Mine Workers of America, District No. 23, or encouraging or discouraging membership in any other labor organization of its employees, by locking out em- ployees, by discharging or refusing to reinstate them, or in any other manner discriminating in regard to their hire and tenure of employ- ment, or any term or condition of employment; (e) Refusing to bargain collectively with United Mine Workers of America, District No. 23, as the exclusive representative of all its mining employees, excluding foremen, bosses, and other supervisory employees, technical help, clerical force, and company executives. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Independent Miners' Union of Western Kentucky, District No. 1, and any local thereof, as repre- sentative of its employees for the purpose of dealing with said re- spondent, directly or through the respondent, The Operators' Associa- tion, or any other person or agency of said respondent, Grapevine Coal Company, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; and completely disestablish Independent Miners' Union of West- ern Kentucky, District No. 1, and any local thereof, as such repre- sentative ; 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Pay each person in its employ on and after July 5, 1935, an amount of money equal to the sum of all dues and initiation fees which it has deducted from the wages, salaries, or other earnings of such person since July 5, 1935, on behalf of Independent Miners' Union of Western Kentucky, District No. 1, and on behalf of any local of that organization; (c) Offer immediately, if the mine of said respondent, Grapevine Coal Company, is now operating, or offer upon the reopening of said mine if the mine is now closed, to all persons in the employ of said respondent on or about May 22, 1937, at the time of the lock-out who have not since been fully reinstated, if any have been reinstated, reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. All or such number as may be necessary of the employees, if any, hired by the respondent after May 22, 1937, when the lock-out com- menced, and not in its employ at the time of the lock-out, shall be dismissed by the respondent to provide employment for the employees above ordered to be offered reinstatement. If, despite and after such dismissal, there is not sufficient employment immediately available for all the employees above ordered to be offered and who shall accept reinstatement and for those employees, if any, employed at the time of the lock-out and already fully reinstated, then all positions of employment shall be distributed by the respondent among these em- ployees in accordance with its usual method of reducing its force, without discrimination because of union affiliation and activities, following such a system of seniority or other procedure as has been theretofore applied by the respondent in the conduct of its business. Those employees remaining after such distribution for whom no employment is immediately available, shall be placed by the respond- ent on a) preferential list, with priority determined among them in accordance with such system of seniority or other procedure, and thereafter, in accordance with said list, shall be offered reinstatement by the respondent in their former or substantially equivalent posi- tions, as such employment becomes available and before other persons are hired for such work; (d) Make whole all persons employed by the respondent at the time of the lock-out for any loss of pay they have suffered by rea- son of the respondent's closing of the mine and locking them out, by payment to each of such employees of a sum of money equal to the amount which he or she normally would have earned as wages from May 22, 1937 to December 8, 1937, and from the date of this Order to the date of the offer of reinstatement hereafter, pursuant to para- graph (c) above, less his or her net earnings 219 during said periods, na See footnote 200, supra. WILLIAMS COAL COMPANY ET AL. 689 provided, that if any such employee has been fully reinstated by the respondent prior to December 8, 1937, then payment to such employee shall be only for the period from May 22, 1937, to such reinstatement, less his or her net earnings during said period, or if full reinstatement has been had since December 8, 1937,• then such payment shall be only for the period from May 22, 1937, to December 8, 1937, less his or her net earnings during such period; however, in all cases there shall be deducted from the amount otherwise due each of said employees hereunder, monies received by him or her during the periods or period for which payment is ordered, on ac- count of work performed upon Federal, State, county, municipal, or other work-relief projects, and the amount so deducted shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which sup- plied the funds for said work-relief projects; (e) Bargain collectively, upon request, with United Mine Work- ers of America, District No. 23, as the exclusive representative of all its mining employees, excluding foremen, bosses, and other su- pervisory employees, technical help, clerical force, and company executives; (f) Immediately post notices in conspicuous places in and around its mine, and maintain such notices for a period of thirty (30) consecutive days, stating that the respondent will cease and desist in manner set forth in 1 (a), (b), (c), (d), and (e) and that it will take the affirmative action set forth in 2 (a), (b), (c), (d), and (e) of this Order; (g) Notify the Regional Director for the Eleventh Region in writing within twenty (20) days from the date of this Order what steps the respondent has taken to comply herewith. Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Sixth Vein Coal Corporation, Madisonville, Kentucky, indi- vidually, or acting through the respondent, The Operators' Associa- tion, or otherwise, and the officers, agents, successors, and assigns of the respondent, Sixth Vein Coal Corporation, shall : 1. Cease and desist from : (a) In any manner interfering 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 or other mutual aid or protection, including the right to peaceful picketing, as guar- anteed in Section 7 of the Act; 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any manner dominating or interfering with the adminis. tration of the local of Independent Miners' Union of Western Ken- tucky, District No. 1, at its mine, with the administration of said Independent Miners' Union of Western Kentucky, District No. 1, or with the formation or administration of any other labor organiza- tion of its employees; and in any manner contributing support to said local, to said Independent Miners' Union of Western Ken- tucky, District No. 1, or to any other labor organization of its employees; (c) Giving effect to or performing any contract or arrangement now existing, and refrain from entering into, renewing, or extend- ing any contract or arrangement, relating to rates of pay, wages, hours of employment or other conditions of employment, to which Independent Miners' Union of Western Kentucky, District No. 1, or any local thereof, is a party, as representative of the employees of said respondent, Sixth Vein Coal Corporation; (d) Discouraging membership in United Mine Workers of Amer- ica, District No. 23, or encouraging or discouraging membership in any other labor organization of its employees, by discharging or refus- ing to reinstate employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment. 2. Take the following affirmative action, which - the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Independent Miners' Union of Western Kentucky, District No. 1, and any local thereof, as repre- sentative of its employees for the purpose of dealing with said re- spondent, directly or through the respondent, The Operators' Asso- ciation, or any other person or agency of said respondent, Sixth Vein Coal Corporation, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; and completely disestablish Independent Miners' Union of Western Ken- tucky, District No. 1, and any local thereof, as such representative; (b) Pay each person in its employ after June 16, 1936, an amount of money equal to the sum of all dues which it has deducted from the wages, salaries, or other earnings of such person since June 16, 1936, on behalf of Independent Miners' Union of Western Kentucky, Dis- trict No. 1, and on behalf of any local of that organization ; (c) Offer to all persons in its employ on March 31, 1936, who went on strike April 1, 1936, or who thereafter, prior to June 16, 1936, left their employment with the respondent to join said strike, and were on strike on said June 16, 1936, including all of the employees listed in Appendix C, who have have not since been fully reinstated, reinstate- ment to their former 220 or substantially equivalent positions with the rm See footnote 210, supra. WILLIAMS COAL COMPANY ET AL. 691 respondent or if no such positions be available then to positions for which they may be qualified, without prejudice to their seniority and other rights and privileges. All, or such number as may be necessary, of the employees presently working for the respondent who were hired since June 16, 1936, and were not in its employ either on March 31, 1936, or during the period between March 31, 1936, and June 16, 1936, shall be dismissed by the respondent to provide such employment for the employees above ordered to be offered and who shall accept reinstatement. If, despite and after such dismissal, there is not suffi- cient employment immediately available for the employees above or- dered to be offered and who shall accept reinstatement, all available positions, if any, shall be distributed by the respondent on a non- discriminatory basis among the employees above ordered to be offered and who shall accept reinstatement following such a system of seniority or other procedure as has been heretofore applied by the respondent in the conduct of its business. Those employees remaining after such distribution for whom no employment is immediately available and those who in accordance with what has been set forth above are rein- stated not to their former or substantially equivalent positions, but to positions for which they are qualified, shall be placed by the re- spondent on a preferential list, with priority determined among them in accordance with such system of seniority and other procedure, and thereafter, in accordance with said list shall be offered reinstatement by the respondent in their former or substantially equivalent positions, as such employment becomes available and before other persons are hired for such work; (d) Make whole all persons in its employ on March 31, 1936, who went on strike April 1, 1936, or who thereafter prior to June 16, 1936, left their employment with the respondent to join the strike, and were on strike on said June 16, 1936, the day the respondent imposed its illegal condition to their reinstatement, including all of the em- ployees listed in Appendix B, for any loss of pay they have suffered from and after June 16, 1936, by reason of the respondent's said dis- crimination against them, by payment to each of such employees a sum of money equal to the amount he normally would have earned as wages from June 16, 1936, to December 11, 1937, and from the date of this Order to the date of the offer of reinstatement pursuant to paragraph (c) above, less his net earnings 221 during said periods (a) had the respondent, in order to provide employment for the em- ployees above ordered to be made whole, refrained at all times after June 16, 1936, from employing, to the extent necessary, any and all persons hired by it after that date, excluding persons in its employ either on March 31, 1936, or during the period from March 31, 1936, 221 See footnote 200, supra. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to June 16, 1936; and (b) had the respondent on June 17, 1936, rein- stated the employees above ordered to be made whole in the positions then available and thereafter in other positions from time to time as and when such other positions became or would have been avail- able, which positions were either the same or substantially equivalent to the positions held by them on March 31, 1936, or on the date prior to June 16, 1936, when they left the respondent's employment to join the strike, or which available positions they were qualified to fill, following such system of seniority or other procedure previously applied by it in the conduct of its business. If any employee above ordered to be made whole was fully reinstated by the respondent prior to December 11, 1937, then such payment to such employee shall be only for the period from June 16, 1936, to such reinstatement less his net earnings 222 during said period, or if full reinstatement had been had since December 11, 1937, then such payment shall be only for the period from June 16, 1936, to December 11, 1937. If any person above ordered to be made whole would have been reinstated pursuant to this paragraph above, but subsequent to the time he so would have been reinstated, he in fact secured regular and substan- tially equivalent employment elsewhere and does not presently desire reinstatement, then, the payment above ordered to such employee shall be made only for the period from June 16, 1936, to the date he first obtained regular and substantially equivalent employment if such date was prior to December 11, 1937, or if since December 11, 1937, then until December 11, 1937, less his net earnings 223 during such period; and for purposes of determining the persons to be made whole and payment to them pursuant to the above, the position to which such employee would have been reinstated shall be considered as vacated by him and available when he first obtained regular and substantially equivalent employment elsewhere. In all cases, how- ever, there shall be deducted from the amount of monies otherwise due each of said employees ordered to be made whole, monies re- ceived by him during the periods or period for which payment is ordered on account of work performed upon Federal, State, county, municipal, or other work-relief projects, and the respondent shall pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or gov- ernments which supplied the funds for said work-relief projects; (e) Immediately post notices in conspicuous places in and around its mine, and maintain such notices for a period of thirty (30) consecu- tive days, stating that the respondent will cease and desist in manner set forth in 1 (a), (b), (c), and (d) and that it will take the affirma- tive action set forth in 2 (a), (b), (c), and (d) of this Order; 222 See footnote 200, supra. 228 See footnote 200, supra. WILLIAMS COAL COMPANY ET AL. 693 (f) Notify the Regional Director for the Eleventh Region in writ- ing within twenty (20) days from the date of this Order what steps the respondent has taken to comply herewith. AND rr is FURTHER ORDERED that the allegations of the amended com- plaint with respect to the persons named and listed in Appendix E be, and the same hereby are, dismissed. APPENDIX A George Berry Lowery Boyd Orene Clark Joe Cunningham Wilford Davis Oscar Denton Ernest Ford William Franklin Leonard Frazier Ross Gamble Joseph Hight Dewitt Hoskins Albert Holliday Marshall Adcox Hubert Brown Lewis Cain Herman Capshaw Ernest Cullen Earl Day Logan Dockrey Thurman Dockrey Jack Dunning W. H. Farmer Lexie Felton Ruby Ferguson Beadie Fork Jess Fork William Franklin William Getlin Bert Hayes Herschell Hibbs Luther Hopper Baxter Howton Harlon Jackson 164275-39-vol. xi-45 J. W. Jackson Joseph Jones Samuel McNeily Abe Nixon Clifton Oates Robert Penrod Andrew Pool Lawson Smith Iley Sneed Edgar Trotter Charles Whitfield Owen Whitfield Ruffin Williams APPENDIX B Ruby Knight E. G. Lantaff William Archie Lee Perry Lyon Gordon Maddox Roy Majors B. D. Melton John Miller Monroe Mullens Ed McCulley William McDonnell Elmer Oglesby Henry Paris Floy Perry Floyd Pierce Byrd Rawlins Lem Rawlins V. O. Scott Aubrey Sisk Carl Sisk Joe Sisk 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. R. Sisk Leonard Sisk Sam Turner Henry Wilkerson Charles Wyatt Chester Wyatt APPENDIX C Name of employee on March 31. Daily rate of pay prior to strike, working 4 to 5 days weekly Earnings since Apr . 1 1936 1938, who went on strike , except as otherwise indicated , Marshall Adcoa _________________ $4 to $5---------------------------- $462.40. Hubert Brown __________________ $4 --------------------------------- $300. Lewis Cain ______________________ $7--------------------------------- Evidence lacking. Herman Capshaw_______________ $5--------------------------------- $600 to $625. E. Cullen ----------------------- $4.60------------------------------ $300. Earl Day----------------------- $4 to $4 .50------------------------- $300. Thurman Dockrey ______________ $4 to $5---- ------------------------ $350. Jack Dunning___________________ $4 50----------------------------- $250. W. H. Farmer ___________________ $3 to $5---------------------------- $286. Lexie Felton_____________________ $5--------------------------------- $275. Beadle Fork _____________________ $4.86------------------------------ $250. Jess Fork ________________________ $28 weekly- ----------------------- $50 William Franklin _______________ $4 to $4 .50------------------------- $300. William Gethn __________________ $3.50------------------------------ $75. Luther Hopper __________________ $3.50 to $4 ------------------------- $450 to $500. Baxter Howton__________________ $4 to $4 50-- ----------------------- $120. Ruby Knight------------------- $4 to $4.50- ---------------------- $300. E. G Lantaif ___________________ $4.50------------------------------ $450. Gordon Maddox_________________ $4 to $5---------------------------- $200. Roy Majors --------------------- $4 50------------------------------ $65. R. D. Melton___________________ $4 --------------------------------- $150. John Miller_____________________ $5--------------------------------- Monroe Mullens ________________ $3 to $4---------------------------- $200 to $250. Ed McCulley___________________ $..50 (about 3 days weekly) -----__ $40. William McDonnell------------- $4 to $5---------------------------- $600. Elmer Oglesby __________________ $4 50------------------------------ $600. Lem Rawlins____________________ $4 50 to $5----- -------------------- $125 V. O. Scott---------------------- $4 50------------------------------ $509 44. Aubrey Sisk _____________________ $4 99------------------------------ $337. Carl Sisk------------------------ $4.66----------------------------- $100. Joe Sisk------------------------- $4 50 to $5------------------------- $165. J. R. Sisk --------------- -------- $4 --------------------------------- $250. Leonard Sisk ____________________ $4.50------------------------------ $165. Henry Wilkerson ________________ $450 ------------------------------ $300 to $400. Charles Wyatt __________________ $4 --------------------------------- $350. Chester Wyatt __________________ $5--------------------------------- $1 daily until September 16, 1937. APPENDIX D Name of employee on Mar. 31, 1936, who went on strike Date of reinstatement Daily rate of pay prior to strike, working 4 to 5 days weekly except as otherwise indic ited Earnings between Apr. 1 , 1936 and date of reinstate- ment Logan Dockrey _________ January 1 , 1937-------- $4_____________________________ $60. Ruby Ferguson--------- October 12, 1936_ ______ $4 to $8________________________ $78. Bert Hayes _____________ December 1936________ $350 -------------------------- Evidence unclear. Herschell Hibbs ------- - November 9.1936 ..... $4.50 -------------------------- $75. Harlon Jackson --------- November 16, 1936___ _ $4 50 to $5_____________________ $100. William Archie Lee___-_ November 9, 1936____ _ $4_____________________________ $26. Perry Lyon_____________ November 5,1936 --- -- $4.50 -------------------------- $2 Henry Paris------------ September 28, 1936__ __ $4 26 (5 to 6 days weekly)--___ Evidence lacking. Floy Perry _____________ January 10 , 1937__ _____ $4 50 to $6--------------------- $150 to $200 Floyd Pierce ------------ November 1, 1936___ __ $4 to $5________________________ $18. Byrd Rawlins ---------- November 9, 1936_____ $4_____________________________ $145. Sam Turner------------ - December 20, 1936_____ $4.50 (3 to 5 days weekly) ------ $150. WILLIAMS COAL COMPANY ET AL. APPENDIX E Luther Abbott Jake Beard Arthur Brown Espy Brown Herschell Brown Ollie Bryant Henry Buntin Bill Cavanaugh Herschel Cullen Joe Eaves L. M. Hicks Wallace Hicks James Hyatt Lee Marshall William Mathes Toni Menser Walter Messemore Elmo Miller Leslie Neisz Edgar Price Elgin Price Elgin Rawlins H. C. Rea Delbert Sisk James E. Steeley Travis Tirey Finis Todd Garland Wyatt Georgia Wyatt Hustler Wyatt 695