The Good Coal Company

In the Matter of THE GOOD COAL COMPANY and UNITED MINE WORK- ERS OF AMERICA , DISTRICT 19 Case No. C-509.-Decided April 8, 1939 Coal Mining Industry-Interference, Restraint, and Coercion: expressed op- position to outside unions ; drafting and circulating anti-union petition ; threaten. ing employees with eviction and loss of employment if remained or became members of Union ; instructions to foreman to watch union activities and to find a pretext to discharge union employees-Company-Dominated Union: association the result of respondent's expressed opposition against "outside organizations" and statements and acts favoring an independent association; respondent continued to dominate and interfere with the Association after its formation ; ordered disestablished-Discrimination: respondent refused to rein- state employees who failed to work on Labor Day in consequence of and in connection with labor dispute, constitutes a discrimination ; four employees remained away from work for reasons not connected with the dispute likewise found to be discriminated against ; complaint dismissed as to nine employees found not to have been discriminated against and as to a foreman found not to have been discriminatorily discharged-Reinstatement Ordered: employees dis- criminatorily refused reinstatement and employees who struck in sympathy with those refused reinstatement, dismissing newly hired employees, if necessary ; preferential list ordered ; to be followed in further reinstatement-Back Pay: awarded ; employees discriminatorily refused reinstatement -Unit Appropriate for Collective Bargaining : production employees working in and about mine, ex- clusive of office, commissary, and supervisory employees-Representatives : proof of choice : membership lists compiled from official membership book of Union and testimony of union secretary-Collective Bargaining: refusal to consider union recognition ; refusal to consider any proposal by Union relative to proof of its majority status ; display of hostility to Union. Mr. Leonard Shore, for the Board. Mr. Cleon K. Calvert, of Pineville, Ky., and Mr. William Sampson and Mr. James Sampson, of Harlan, Ky., for the respondent. Mr. Gus B. Bruner, of Harlan, Ky., for the Association. Mr. James S. Golden, of Pineville, Ky., for the U. M. W. Mr. S. G. Lippman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by United Mine Workers of America, District 19, herein called the U. M. W., the National Labor Relations 12 N. L. R. B., No. 19. 136 THE GOOD COAL COMPANY 137 Board, herein called the Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued its complaint dated Novem- ber 16,1937, against The Good Coal Company, Lisle, Kentucky, herein called the respondent, alleging that the respondent 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 National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notices of hearing were duly served upon the respondent, upon the U. M. W., and upon the Wallins Creek Employees' Association, herein called the Association, a labor organization admitting to membership employees of the respondent. The complaint alleged in substance that the respondent had (a) intimidated and coerced its employees in order to discourage their joining the U. M. W.; (b) dominated and interfered with the forma- tion and administration of the Association and contributed financial and other support to said Association; (c) discriminatorily dis- charged 134 named persons on or about September 6, 1937, and E. P. Jackson on or about October 14, 1937, and since refused to employ said individuals, for the reason that they joined and assisted the U. M. W. and engaged in concerted activities with other employees, for the purpose of collective bargaining and other mutual aid and protection; and (d) on or about June 5, 1937, and at all times there- after, refused to bargain collectively- with the U. M. W. as a repre- sentative of its employees in an appropriate unit. On November 20, 1937, the respondent filed its answer to the com- plaint, denying that its operations affect interstate commerce and denying that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing on the complaint was held in Wallins Creek, Harlan County, Kentucky, from December 3 to December 7, 1937, before Harlow Hurley, the Trial Examiner duly designated by the Board. The Board, the U. M. W., the respondent, and the Asso- ciation, which intervened in the proceeding, were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the Board's case, counsel for the Board moved to dismiss the allegations of the complaint with respect to those per- sons named therein who failed to appear when called or who were not called to testify. Counsel for the Board also moved that the com- plaint be amended to conform with the proof. The Trial Examiner granted these motions. The rulings are hereby affirmed. At the close of the hearing, the Association moved that certain paragraphs of its petition for intervention be taken as true and confessed upon the ground that the allegations were not denied by the Board. The Trial Examiner overruled this motion. The ruling is hereby affirmed. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the close of the hearing, the respondent moved that the complaint be dismissed on the grounds : (1) that the respondent is not engaged in interstate commerce; (2) that the evidence does not sustain the complaint. The Trial Examiner overruled the motion. The ruling is hereby affirmed. During the course of the hearing the Trial Exam- iner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On March 28, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served on all parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), (3), and (5) of the Act. He recommended that the respondent cease and desist from its wifair labor practices; that it make whole and offer 117 of the persons named in the complaint immediate and full reinstatement without prejudice to their seniority or other rights and privileges; that it disestablish and withdraw all recognition from the Association as collective bargaining representative of its employees; that upon request it bargain collectively with the U. M. W. as the exclusive representative of its production employees; and that it take certain other affirmative action to remedy the situation brought about by the unfair labor practices. Thereafter the respondent filed exceptions to the Intermediate Report. On May 6, 1938, the Board advised the respondent, the Association, and the U. M. W. of their right to apply for oral argu- ment or permission to file briefs regardless of previous notification or rulings by the Trial Examiner. The parties did not avail themselves of this opportunity. The Board has reviewed the exceptions to the Intermediate Report and, save as consistent with the findings, con- clusions, and order hereinafter set forth, finds the exceptions to be without merit. Upon the entire record of the case, the Board make the following : FINDINGS OF FACT. I. THE BUSINESS OF THE RESPONDENT The Good Coal Company, a Kentucky corporation, is engaged in the business of mining and selling coal. It operates a mine in Lisle, Harlan County, Kentucky, which is leased on a royalty basis from The Harlan Wallins Corporation. The coal is sold chiefly to Southern Coal & Coke Company, located at Knoxville, Tennessee; the Midland Coal Company, located at Cincinnati, Ohio; and the Continental Collieries, located at Cincinnati, Ohio. The sales to these companies THE GOOD COAL COMPANY 139 are f. o. b. the tipple and all shipments on orders from these companies are made in cars of the Louisville and Nashville Railroad and con- necting carriers. The respondent mines approximately 160,000 tons of coal each year. It was stipulated that the shipments of coal of the respondent for the month of July 1937 were typical of the shipments for any month of the respondent's operations. During July 1937, the re- spondent shipped 390 cars of coal, approximately 50 tons per car. More than 80 per cent of such coal was shipped to Alabama, Georgia, Tennessee, Indiana, South Carolina, North Carolina, Illinois, Mich- igan, Ohio, and Wisconsin. The sales were made chiefly to the com- panies named above. The respondent, for use in its mining operations, purchases sand, oil, powder, and carbide, substantially all of which are obtained outside of the State of Kentucky. The respondent conducts a commissary in connection with its opera- tions and maintains approximately 113 houses which it rents to em- ployees. The supplies for the commissary are obtained by the respondent for the most part from outside Kentucky. II. THE ORGANIZATIONS INVOLVED United Mine Workers of America, District 19, is a labor organiza- tion admitting to membership persons employed in the mining in- dustry in Tennessee and in the southeastern part of Kentucky, exclusive of supervisory employees, office employees, and commissary clerks. It is affiliated with the United Mine Workers of America, air international labor organization, which is in turn affiliated with the Committee for Industrial Organization. It comprises various local labor organizations, including Local No. 1255 at the mine of the respondent. Wall ins Creek Employees' Association is an unaffiliated labor or- ganization, admitting to its membership all employees of the re- spondent, excluding supervisory, office, and commissary personnel. III. TIIE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In February 1937 the respondent called a meeting of its employees ostensibly for the purpose of raising funds for the Red Cross and discussing the establishment of a burial fund for employees. E. P. Jackson, who at the time of the meeting was employed by the re- spondent as a mine foreman, testified that at the meeting J. L. McIntyre, the respondent's vice president and superintendent, asked the employees "not to get tied up with the union that was floating 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD around the country" and stated that "when it came before them that they needed an organization that he would help them to get or- ganized and get them a charter and pick their committees . . " McIntyre admitted that he had made remarks of such character and further testified as follows : I asked the men there, told them that there seemed to be quite a bit of newspaper and press about organizing the coal fields, and especially Harlan County, and that I didn't want them to sneak around behind my back and organize. When the time come and Harlan County was going to be organized, I would see to it they was properly organized in any way, shape and form and get some good representatives out of their lines, and we would go along in a peaceful way. McIntyre also admitted that during the early part of 1937 he had drafted for circulation among the employees a petition which read as follows : We, the undersigned and employees of the above company, have elected to deal collectively with our company. We do not wish to be intimidated with or from outside source, which has been prevalent in the past few weeks. We feel we have been dealt with fairly both in conditions and wages and wish to continue under the same conditions in the future. McIntyre testified that he did not recall to whom he gave the peti- tion for circulation, but that he didn't want the foremen to handle it. He further testified that the purpose of the petition was to ascertain "how the men felt toward the way they were being treated by the Good Coal Company" and "whether or not they had any grievances against the company they wanted to air." Theodore Parker, an employee, testified that George Brock, an entry foreman, gave him a copy of the petition and got him to sign it. This testimony was not controverted. We think it clear that the act of the respondent in drafting the said petition for circulation among the employees and the act of Brock in soliciting employees to sign it, particularly at a time when attempts were being made to organize the employees for the purpose of collective bargaining, constituted an interference with the rights guaranteed employees by the Act and we so find. Louis Stines, an employee, testified he received a notice from the respondent to vacate his respondent-owned house in February 1937 and that, when he consulted McIntyre respecting the reason for the notice, McIntyre replied, "they tell me you belong to the United Mine Workers and if you do ... the notice is good." Stines fur- ther testified that he denied belonging to the United Mine Workers and that McIntyre then stated "I have got a way of checking up THE GOOD COAL COMPANY 141 and finding out ... If you do, the notice stands good, but if you don't, ignore the notice and go back to work." George Stines, an employee, testified that he also received a notice to vacate his house and that he had a conversation with McIntyre similar to that testified to by Louis Stines. Although McIntyre denied that he had engaged in discrimination against any union, he did not refer in his testimony to the above acts and conversations. We conclude that McIntyre made the remarks testified to by the Stineses. E. P. Jackson testified that on August 20, 1937, McIntyre handed him a list of members of the Association which had previously been formed and told him that he should favor the men whose names appeared on the list. Jackson further testified that McIntyre in- structed him not to discharge any man because of his union affilia- tion but stated that "we could always fire on some other grounds" and that McIntyre pointed out certain specific members of the union he wanted "some good reason" found whereby they could be dis- charged. Jackson also testified that, in accordance with the instruc- tions from McIntyre, he told the assistant foremen to watch and re- port to him concerning the activities of the employees. McIntyre denied that he had given any list of employees to Jackson or that he had made the statements or given the instructions testified to by Jackson. In view of the admitted hostility of McIntyre to union organization and the other acts of intimidation and coercion on his part, we conclude that he engaged in the acts and gave the instruc- tions as testified to by Jackson. We find that, by the activities and statements above set forth, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Interference with and domination of the Association We have noted above that, at the meeting called by the respondent in February 1937, McIntyre expressed opposition to outside organi- zations and stated that at a proper time he would help the employees to organize and to get a charter and pick their committees. About the latter part of June 1937, Cecil Barnes, an employee at "Totz," a neighboring coal mine where an unaffiliated union had- been organized, was instructed by such union to communicate with McIntyre relative to organization of the employees of the respondent. Barnes testified that he spoke to McIntyre about the advantages of such a union and that McIntyre remarked, "It is what I have been trying to get the coal operators' association of Harlan County to do for 5 or 6 years." Barnes further testified that McIntyre stated that he "would see the men and get them to work on it," but that it would be necessary for him (McIntyre) to remain in the background in 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order that it would not appear that the respondent has participated in the formation of such an organization . Shortly thereafter, at Barnes' request, McIntyre gave him a job at the respondent 's mine. McIntyre was not questioned with respect to the remarks Barnes testified that he made, but stated merely that Barnes "run me to death for about 2 weeks" about a job at the respondent's mine and that Barnes "went through that rigamarole about his association up there all the time, for an indication he wanted to get a job down here." McIntyre testified that he finally gave Barnes a job "to get rid of him off my porch." Under all the circumstances, we conclude that McIntyre's explanation regarding the reason for employing Barnes cannot be accepted and that McIntyre made the remarks testified to by Barnes. On or about August 6, 1937, the Association was formed and in- corporated under the laws of the State of Kentucky . E. P. Jackson testified that about this time Clyde Thorpe, an employee of the re- spondent who became vice president of the Association , stated, in reply to a question by Jackson as to where he was going, "I am go- ing out to Harlan with McIntyre and Bill Collins 1 ... We are going to go up and get that company charter (sic)" Jackson fur- ther testified that shortly thereafter he saw McIntyre, Collins, and Thorpe get into an automobile and drive off ; that 2 days later Thorpe stated that the charter had been obtained. McIntyre, Collins, and Thorpe denied at the hearing that they had at any time driven to Harlan together. McIntyre also denied that he had anything to do with the obtaining of the charter or the formation of the Association. Elmer Osborne, an employee of the respondent and president of the Association, testified that he and Bill Collins went to Harlan and employed G. B. Bruner , a Harlan attorney , to secure the charter for the Association. In view of the other facts presented herein, we find it unnecessary to determine whether McIntyre in fact went with Thorpe and Collins to aid in securing a charter for the Association. About the time the charter was obtained by the Association, it held a number of meetings, bylaws were adopted , officers were elected, and committees were appointed. We have found above that about August 20, 1937, shortly after the formation of the Association , McIntyre handed Jackson a list of the members of the Association stating that such persons were to be favored and also instructed Jackson to attempt to find reasons for discharging certain members of the U. M. W. Jackson testified, moreover, that following the formation of the Association McIntyre instructed him to shift Obe Alred, a U. M. W. member, to a less desirable place in the mine and to replace him with 1 An employee who became secretary -treasurer of the Association. THE GOOD COAL COMPANY 143 John Price, a member of the Association, in order that the latter might "exercise influence over the men." Although McIntyre denied that he at any time instructed his foremen to favor the Association or to discriminate against the members of the U. M. W., he -did: not testify as to whether he had instructed Jackson to put Price in the position which Alred had held. We conclude that McIntyre did so°and gave the instructions testified to by Jackson. We conclude that the formation of the Association resulted from the opposition which McIntyre expressed against "outside organi- zations" and his statements and acts favoring an organization such as the Association 2 and that after the formation of the Association the respondent continued to dominate and interfere with it by virtue of the various acts and statements set forth above. We find that the respondent has dominated and interfered with the formation and administration of the Association and has con- tributed support to it; that in and by such acts the respondent has interfered with, restrained, and coerced its employees in rights guar anteed them by Section 7 of the Act. C. The refusal to bairgaM collectively 1. The appropriate unit The complaint alleges that the production employees of the respondent who work in and about its mine constitute a unit appro- priate for the purposes of collective bargaining. The office, commis- sary, and supervisory employees of the respondent are not eligible to membership in the U. M. W. and these employees would be excluded from the unit by the U. M. W. as non-production employees. The respondent raised no objection to the aforesaid unit in its answer to the complaint or at the hearing. We find that the production employees of the respondent who work in and about its mine, exclusive of office, commissary, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the respond- ent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. 2. Representation by the U. M. W. of a majority in the appropriate unit It was stipulated at the hearing that the respondent employs approximately 182 production employees in and about its mine. Lige Helton, secretary of the U. M. W. local at the respondent's mine, 2 See Matter of Crawford Manufacturing Company and Textile Workers Organizing Committee, 8 N. L. A. B. 1237. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified from records of the local that the local and thus the U. M. W. had 67 members among the production employees of the respondent on May 17, 1937; 98 members on May 24, 1937; 131 members on May 31, 1937; 139 members on June 8, 1937; and 141 members on June 15, 1937. There was also introduced in evidence a list of the members of the U. M. W. local as of September 6, 1937, containing the names of 158 production employees of the respondent. Raymon Reynolds, financial secretary of the U. M. W. local, testified that the list was compiled from the local's official membership book. The respondent did not question the testimony of Helton or the authenticity of the membership list submitted by the U. M. W. Reynolds testified that the approximately 25 members of the U. M. W. who worked after September 6, 1937,3 were thereafter not considered to be members of the U. M. W. Even if such persons were deemed no longer to desire representation by the U. M. W., the majority status of the U. M. W. would not be affected thereby. We have noted above that the Association was organized in August 1937 and the Association claimed at the hearing that it represented a large number of the employees of the respondent. We have found, however, that the respondent dominated and interfered with the formation and administration of the Association. Under such cir- cumstances, the fact that an employee may have changed his affilia- tion from the U. M. W. to the Association is not to be given weight in determining the desires of such employee with respect to representation 4 We note in Section D below that the respondent on September 7, 1937, discharged a large number of employees who did not work on September 6, 1937, and it apparently thereafter employed persons to fill the positions of the discharged employees. Since we find, how- ever, that the respondent by virtue of the discharges engaged in an unfair labor practice, the majority status of the U. M. W. is not affected by the discharges or by the taking on of any new personnel thereafter to fill the positions of the persons discharged. We find that on and about June 5, 1937, and at all times thereafter, the U. M. W. represented a majority of the employees of the respond- ent in the appropriate unit. By the authority of Section 9 (a) of the Act, the U. M. W. is therefore the exclusive representative of the production employees of the respondent who work in and about its mine, exclusive of office, commissary, and supervisory employees, for the purposes of collective bargaining in respect to rates of pay, hours of work, and other conditions of employment. 7 8 The events which took place on and about September 6, 1937, are discussed in detail in Section D below. * See Matter of Bradford Dyeing Association (U. S. A.) (a Corporation) and Textile Workers Organizing Committee of the C. I. 0., 4 N. L. R. B. 604. THE GOOD COAL COMPANY 145 3. The refusal to bargain collectively About June 5, 1937, a committee designated by the U. M. W. requested McIntyre, the respondent's vice president and superintend- ent, to allow the U. M. W. to use for its meetings a schoolhouse owned by the respondent. The committee in making this request informed McIntyre that the U. M. W. represented a majority of the respond- ent's employees. McIntyre refused to allow the U. M. W. the use of the schoolhouse and at the hearing admitted that he had stated at the time that he would not recognize the U. M. W. "under any cir- cumstances." W. S. Hunter, a member of the committee testified that McIntyre told the committee, Well, I think you boys got in a hell of a damn hurry ... I told you up there in the meeting at the schoolhouse that when the proper time comes, that I would help you select your com- mittee, go with you and help you get your charter . . . you can look at this Black Mountain union up here ... They are all the time raising hell ... I don't want no such organization as that in our camp ... We only have a few thousand dollars in our company, and before I will recognize the United Mine Workers, I will drag my steel, sell my machinery ... close the drift mouth and quit." This testimony, which was corroborated by that of Herman Jones, another member of the committee, was not refuted by McIntyre. We find that the latter made the statements attribued to him. On August 5, 1937, the U. M. W. by a vote of its members in- structed the committee, previously selected, except that Theodore Parker was appointed in the place of Charles Hunt, again to com- municate with McIntyre and to ascertain whether he would accept the word of the U. M. W. that it represented a majority of the re- spondent's employees or would desire a "labor vote." The committee saw McIntyre on the same afternoon and offered to prove by its check-off slip that the U. M. W. represented a majority of the em- ployees or, if this form of proof was not satisfactory, to have a "Labor Board count." Parker testified that McIntyre replied, "To hell with the Labor Board count. They couldn't have a damn union ... go back and tell them fellows he wasn't going to have a damn thing to do with it ... That if they wanted to strike to go ahead and strike, he had broke it in twenty-four hours, and he could do it again." When questioned at the hearing as to the accuracy of the testimony relative to the meeting of August 5 with the committee, McIntyre stated, "I haven't disputed it." We find that McIntyre made the statements attributed to him. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear that the committee of the U. M. W. at the meetings with McIntyre on June 5 and August 5, 1937, sought, among other things, recognition of the Union as the bargaining representative of the respondent's production employees and offered to prove that the U. M. W. represented a majority of such employees. This action of the U. M. W. committee was a logical step in the collective bar- gaining process. McIntyre on behalf of the respondent, refused to grant the U. M. W. recognition as bargaining representative, refused to consider any proposals by the U. M. W. concerning the furnishing to the respondent proof of its majority status, and by his display of hostility to the U. M. W. precluded further attempts of the U. M. W. with regard to collective bargaining.5 We find that on or about June 5, 1937, on August 5, 1937, and at all times thereafter, the respondent refused to bargain collectively with the U. M. W. as the representative of its employees in an ap- propriate unit. We further find that thereby and by virtue of the statements which McIntyre made to the U. M. W. committee the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discriminations in regard to hire and tenure of employment The complaint alleges that the respondent on or about September 6, 1937, discharged 134 named employees, and on or about October 14, 1937, discharged E. P. Jackson, for the reason that said employees joined and assisted the U. M. W. and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection . At the hearing, upon motion by counsel for the Board, the allegations of the complaint were dis- missed as to 19 of the said 134 individuals .e There remain, there- fore, for consideration the cases of 115 of the said 134 individuals and the case of Jackson. Monday, September 6, 1937 , was Labor Day and a large number of the employees of the respondent planned on that day to attend a Labor Day rally under union auspices . On the preceding Friday, Jackson, the general mine foreman, informed McIntyre that many of the employees did not intend to work on Labor Day. McIntyre replied that the mine would be operated even if only three men ap- peared for work. On Saturday , September 4, 1937, the respondent posted a notice which stated that the respondent would operate on Labor Day. McIntyre testified that the respondent also blew the 5 See Matter of Piqua Munising Woods Products Company and Federal Labor Union Local 18787, 7 N. L. R. B., 782 ; Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge No. 1719, 7 N. L. R. B. 714. 6 The names of the said 19 persons are set forth in Appendix A annexed hereto. T FIE GOOD COAL COMPANY 147 mine whistle on Sunday, September 5, and that this indicated that the mine would operate on the following day. On Sunday, Sep- tember 5, the U. M. W. met and unanimously decided not to work on Labor Day, but instead to attend the Labor Day rally. A com- mittee which was designated by the U. M. W. to notify McIntyre of this decision decided that to do so would be useless inasmuch as they were informed by one of the employees that McIntyre had decided to operate the mine in any event. McIntyre testified that it was custom in Harlan County to operate on Labor Day and that it was necessary to operate on the Labor Day in question because of certain coal orders which had just been obtained by the respondent. McIntyre further testified that it was a rule of the respondent that employees who stayed away from work without permission would be discharged. Numerous witnesses, including Jackson, who until his discharge held the position of general mine foreman, denied knowl- edge of any such rule. George Stines, an employee, testified that he had been absent from work before without permission without any- thing happening. We conclude that the employees had never been informed of the rule which McIntyre testified existed at the respond- ent's mine. On Labor Day, September 6, approximately 40 employees reported for work and approximately 140 remained away. McIntyre posted a notice which read as follows : SEPT. 6, 1937-ABOUT 9:30 A. M. Notice to all employees who did not report for work, Monday, September 6, 1937, will please consider themselves discharged and report to office for settlement. J. L. MCINTYRE, General Manager. The approximately 40 employees who reported for work on Septem- ber 6 worked throughout the day. On Tuesday, September 7, 1937, practically all the employees who had been absent on the previous day reported for work. Acting upon instructions from McIntyre, Jackson refused to allow the men to enter the mine. Shortly thereafter McIntyre arrived, accompanied by a number of deputy sheriffs, and announced that "all you men that didn't work yesterday, obey your notice, go to the office and get your money and settle up. I worked without you yesterday and will do without you today and from now on." Thereafter, a number of the men who worked on Labor Day refused to work until the dis- charged men had been reinstated and left the mine. By an Act of the Congress of the United States, "the first Monday in September in each year, being the day celebrated and known as Labor Day, is made a legal public holiday in the same manner as Christmas, the first of January, the 22nd day of February, the 30th 169134-39-vol 12 -11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day of May, and the 4th of July, are now made by law public holi- days." 7 Although the said Act does not prevent a private employer from operating his business on Labor Day, it clearly recognizes the day as one of special significance to labor. It is well known that industry in general ceases its operations on Labor Day and that labor in general engages in special celebrations on that day. It was under these general circumstances that a majority of the employees of the respondent decided not to work on the Labor Day in question and that the respondent decided to operate its mine on that day. It is clear that the respondent and the employees each knew of the posi- tion of the other in this matter and that each party intended to adhere strictly to its position. We find that there existed as a result of these conflicting positions of the parties a current labor dispute with respect to the terms and conditions of employment. It was as a consequence of and in connection with the aforesaid labor dispute that the U. M. W. held its meeting on Sunday, Septem- ber 5, and unanimously voted not to work on Labor Day. The vote was in effect a vote to strike on Labor Day in protest against a con- dition of employment which the respondent had decided to impose and which, by notice, the respondent had stated would be imposed. The persons whose names are listed in Appendix B annexed hereto did not work on Labor Day as a consequence of and in con- nection with the labor dispute. These persons therefore retained their status as employees 8 and such status was not affected by the attempt of the respondent on September 6, 1937, to discharge them.9 All the persons named in Appendix B attempted to return to work on September 7, but the respondent refused to permit them to do so. This refusal was based solely upon the ground of the failure of the men to appear for work on Labor Day. Inasmuch as the failure of the men to work on Labor Day was a consequence of and in connec- tion with the current labor dispute and since the respondent had not at the time it refused to allow the men to return to work filled their positions, the refusal constituted a discrimination against the men, within the meaning of Section 8 (3) of the Act.19 Two employees, John Wenger and Stonewall Jackson, did not work on Labor Day because of illness. A. third employee, Roy Stur- gill, did not work on Labor Day for the reason that several days prior thereto he had been laid off pending an investigation by the 7 28 stat. 96. g National Labor Relations Act, 49 Stat. 449, Section 2 (3) ; National Labor Relations Board v. Mackay Radio & Telegraph Company, 304 U. S. 333 ( 1938). 9 Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No 502, 6 N L R B. 171; Matter of Amemcan Manufacturing Concern and Local No. 6, Organized Furmture Workers, 7 N. L R B. 753. io See National Labor Relations Board v. Mackay Radio & Telegraph Company, 304 U. S. 333 ( 1938) ; Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Trop Workers of North America, Local No. 1139 , 10 N. L. R. B. 33. THE GOOD COAL COMPANY 149 respondent of an accident which had occurred at the mine. A fourth employee, Roscoe Jones, had received permission to visit friends on Labor Day and he was absent from work on Labor Day for this reason. On September 7 he returned to work and together with the employees listed in Appendix B was refused reinstatement. At the time of the respondent's refusal to permit the men listed in Appen- dix B and Roscoe Jones to return to work, Jackson informed McIn- tyre that a number of men had been absent from work on Labor Day due to illness or because they had been laid off. McIntyre replied that, "he was taking no excuses from anyone" and further stated, "don't mete out anything. We will put them on the run. If they was in our place, they would put us on the run." It was thus the position of the respondent that, because of the concerted activity of employees, anyone who did not appear for work on Labor Day could not return to work. The testimony of Wenger, Jackson, and Stur- gill, shows that they knew that this was the position of the respond- ent and that for this reason they did not appear for work on Sep- tember 7. Under such circumstances, we find that application for employment on September 7 by the three employees would have been futile and wa3 therefore unnecessary. We find that the respondent refused to allow Wenger, Jackson, Sturgill, and Jones to return to work on September 7 because of the concerted activities of employees of the respondent on Labor Day and that the respondent thereby discriminated with regard to the hire and tenure of employment of said persons within the meaning of Section 8 (3) of the Act. At varying periods after September 7 the respondent offered to allow Lige McLain and Elmer Cook, two employees named in Appendix B, and Wenger, Jackson, Sturgill, and Jones to return to work. The employees refused to do so unless the other employees who had been discriminated against were also allowed to return to work. We conclude that an offer of reinstatement to some of a number of employees who have been discriminated against as a result of concerted activity such as here involved together with a clear manifestation that the other employees who have been so discrimi- nated against will not be allowed to return to work, does not consti- tute any real offer of reinstatement within the purview of the Act." We find therefore that the rights of McLain, Cook, Wenger, Jackson, Sturgill, and Jones, are unaffected by the offers of reinstatement which were made to them by the respondent. A number of employees, including Jim Scott, Charles Slagle, Morris Slagle, Emmet Slagle, Burley Stevens, George Slusher, Roose- velt Slusher, John Wynn, and Curtis Simpson, worked at the re- spondent's mine on Labor Day, but went out on strike at varying '}See Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L. It. B. 1252. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dates shortly thereafter because of the respondent's refusal to allow the other employees to return to work and because of the conditions resulting from such refusal. The strike of these employees was, therefore, due to the unfair labor practice of the respondent. We find that these employees have not been discriminated against within the meaning of Section 8 (3) of the Act. They are, however, entitled to reinstatement to their former positions as set forth in the Section entitled "The remedy" below. We find that the respondent, by refusing to allow the persons named in Appendix B, and John Wenger, Stonewall Jackson, Roy Sturgill, and Roscoe Jones to return to work on September 7, 1937, discriminated in regard to their hire and tenure of employment, thereby discouraging membership in a labor organization; that in and by said discriminations the respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.12 We further find that the em- ployees, including Jim Scott, Charles Slagle, Morris Slagle, Emmet Slagle, Burley Stevens, George Slusher, Roosevelt Slusher, John Wynn, and Curtis Simpson, who ceased work shortly after September 7, 1937, as set forth above, did so because of unfair labor practice on the part of the respondent. E. The allegedly discriminatory discharge of E. P. Jackson Jackson was employed by the respondent as general mine foreman when it commenced operations in September 1936. Prior thereto, he had worked under McIntyre for about 12 years at a mine operated by the respondent at Kildav, Harlan County, Kentucky. Jackson was never a member of the U. M. W. and, as we have noted above, actively assisted the respondent in its discriminations against the employees and the U. M. W. About September 14, 1937, Jackson was demoted by McIntyre from his position of general mine foreman to that of trackman. Jackson testified that McIntyre stated at the time, "I want you to change places with Mr. Asher and go to the other side of the mine . . . we are going to have to do a lot of things on that side of the mine that will be too embarrassing for you." On the morning of September 22, 1937, Jackson was discharged by George Clontz, who, together with Walter Asher, had taken over Jackson's duties as general mine fore- man. Clontz asserted that the time that he discharged Jackson that the latter had failed to "fix a joint" as he had been instructed. Jack- son testified that due to the existence of certain other broken joints he 12 The facts with regard to the employment of the persons listed in Appendix B, Wenger, Jackson, Sturgill, and Jones , from September 7, 1937, to the date of the hearing, are set forth in Appendix C, annexed hereto. THE GOOD COAL COMPANY 151 had been unable to carry out all the work assigned him although he had worked about an hour overtime the previous night. He also testified that he had made a full report of the matter to Clontz the night prior to his discharge. Clontz was not questioned at the hearing concerning the discharge of Jackson. McIntyre testified, however, that Jackson was demoted and subsequently discharged "for inefficiency." He testified further that Jackson had during the course of his employment under him at Kildav been demoted about four times for "inefficiency and not prop- erly looking after the mine, laying off on Mondays drunk." Although the facts disclosed by the record are sufficient to raise a doubt as to the reason for Jackson's demotion and discharge, we conclude that no sufficient showing has been made that they were prompted by any union activities of Jackson or were for the purpose of discouraging membership in any labor organization. We shall, therefore, dismiss the allegations of the complaint with respect to Jackson. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and have led and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the condition which existed prior to the commission of the unfair labor practices. We have found that the respondent has dominated and interfered with the formation and administration of the Wallins Creek Em- ployees' Association. In order to effectuate the policies of the Act and free the employees of the respondent from such domination and interference, and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we shall order the respondent to withdraw all recog- nition from said Association as representative of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, hours of work, and other conditions of employment, and to disestablish it as such representa- tive. We shall also order the respondent, upon request, to bargain 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively with the United Mine Workers of America, District 19, as the the exclusive representative of all the employees of the respond- ent who work in and about its mine, exclusive of office, commissary, and supervisory employees. We have found that the respondent on September 7, 1937, dis- criminated against the employees listed in Appendix B and against John Wenger, Stonewall Jackson, Roy Sturgill, and Roscoe Jones in regard to their hire and tenure of employment. Accordingly, we shall order the respondent to make these employees whole for any loss of pay they have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination on September 7, 1937, to the date on which the respondent offers him reinstatement or placement on a preferential list, as hereinafter provided, less his net earnings 13 during said period. We shall also order the respondent to offer these said em- ployees reinstatement to their former or substantially equivalent positions, in the manner set forth below, without prejudice to their seniority and other rights and privileges. We have found that employees, including Jim Scott, Charles Slagle, Morris Slagle, Emmet Slagle, Burley Stevens, George Slasher, Roose- velt Slusher, John Wynn, and Curtis Simpson, went on strike shortly after September 7, 1937, as a result of the respondent's unfair labor practice in refusing work to employees following Labor Day. We shall dismiss the allegations of the complaint alleging that the respondent has discriminated with respect to the hire and tenure of employment of these persons, but shall order the respondent, upon application, to offer reinstatement to these employees to their former or substantially equivalent positions, in the manner set forth below, without prejudice to their seniority and other rights and privileges.14 The reinstatement of the employees who are entitled to reinstate- ment as set forth above shall be effected as follows : All, or such number as may be necessary, of the persons hired by the respondent after September 7, 1937, and not in the employ of the respondent on said date, shall be dismissed to provide employment 18 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber 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 govern- ment or governments which supplied the funds for said work -relief projects. 14 See National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862 C. C. A. 2d), cert. denied 58 S. Ct. 1046. THE GOOD COAL COMPANY 153 for those to be offered, and for those who under our order apply for, reinstatement. If thereupon, despite such reduction in force, there is not sufficient employment immediately available for the employees presently employed by the respondent, excluding those so dismissed, and the employees to be offered and the employees who under our order apply for reinstatement, all available positions shall be dis- tributed among the employees presently employed, except those so dismissed, and the employees to be offered and the employees who under our order apply for reinstatement, in accordance with the respondent's usual method of reducing its force, without discrimina- tion against any employee because of his union affiliation and activ- ities, following such a system of seniority or other procedure to such extent as has heretofore been applied in the conduct of the respond- ent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list with priority determined among them by such system of seniority or other procedure as has been heretofore followed by the respondent, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions; as such employment becomes available and before other persons are hired for such work. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONOLusIONS OF LAW 1. United Mine Workers of America, District 19, affiliated with the Committee for Industrial Organization, and Wallins Creek Em- ployees' Association, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of Wallins Creek Employees' Association, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of the persons named in Appendix B and of John Wenger, Stonewall Jackson, Roy Sturgill, and Roscoe Jones, thereby encour- aging membership in Wallins Creek Employees' Association, and dis- couraging membership in any other labor organization, including United Mine Workers of America, District 19, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. The production employees of the respondent who work in and about its mine, exclusive of office, commissary, and supervisory em- ployees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. United Mine Workers of America, District 19, is and at all times after June 5, 1937, has been the exclusive representative of all the employees of the respondent in such unit, for the purposes of collec- tive bargaining, within the meaning of Section 9 (a) of the Act. 6. By refusing on or about June 5, 1937, and at all times thereafter, to bargain collectively with United Mine Workers of America, Dis- trict 19, as the exclusive representative of all its employees in such unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor prattices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices, and each of them, are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 9. The respondent has not discriminated in regard to the hire and tenure of employment of E. P. Jackson, within the meaning of Sec- tion 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 respondent, The Good Coal Company, and its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of Wallins Creek Employees' Association, or with the formation or administration of any other labor organization of its employees, or from contributing support to the Association or to any other labor organization of its employees; (b) Recognizing the Wallins Creek Employees' Association, as representative of any of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of work, or other conditions of employment ; (c) Discouraging membership in United Mine Workers of Amer- ica, District 19, or any other labor organization of its employees, by discriminating in regard to hire and tenure of employment or any term or condition of employment; (d) Refusing to bargain collectively with United Mine Workers of America, District 19, as the exclusive representative of the pro- duction employees of the respondent who work in and about its mine, exclusive of office, commissary, and supervisory employees; THE GOOD COAL COMPANY 155 (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Refrain from recognition of Wallins Creek Employees' Asso- ciation as representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of work, or other conditions of employ- ment, and completely disestablish Wallins Creek Employees' Asso- ciation as such representative; (b) Make whole the persons named in Appendix B and John Wenger, Stonewall Jackson, Roy Sturgill, and Roscoe Jones for any loss of pay they have suffered by reason of the respondent's discrimi- natory refusal to employ them on September 7, 1937, by payment to each of them of a sum of money equal to that which he would normally have earned as wages from September 7, 1937, to the date on which the respondent offers him reinstatement or placement on a preferential list, as hereinafter provided, less his net earnings during said period; deducting, however, from the amount thus to become due 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 Fed- eral, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Offer to the persons specified in subsection (b) above and, upon application, to all persons, including Jim Scott, Charles Slagle, Morris Slagle, Emmet Slagle, Burley Stevens, George Slusher, Roosevelt Slusher, John Wynn, and Curtis Simpson, who shortly after Septem- ber 7, 1937, ceased to work because of the respondent's refusal of employment to the persons specified in subsection (b) above, rein- statement to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, or placement upon a preferential list, such reinstatement or placement upon a preferential list to be in the manner set forth in the section entitled "The remedy" above; (d) Make whole the persons specified in subsection (c) above, ex- cept those also specified in subsection (b) above, for any loss of pay they may suffer by reason of the respondent's refusal, if any, following the issuance of this Order, to reinstate or place them upon a preferen- tial list, pursuant to subsection (c) above, by payment to each of them of a sum of money equal to that which he would normally have 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earned as wages during the period from five (5) days after his applica- tion for reinstatement to the date on which he is reinstated or placed upon the preferential list, less his net earnings during said period; (e) Upon request, bargain collectively with United Mine Workers of America, District 19, as the exclusive representative of the produc- tion employees of the respondent who work in and about its mine, exclusive of office, commissary, and supervisory employees, in respect to grievances, rates of pay, wages, hours of work, and other conditions of employment; (f) Immediately post notices in conspicuous places in and around its mine, and maintain such notices for a period of sixty (60) con- secutive days, stating that the respondent will cease and desist in the 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 Ninth 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, in so far as they allege that the respondent has discriminated in regard to hire and tenure of employment of E. P. Jackson, Jim Scott, Charles Slagle, Morris Slagle, Emmet Slagle, Burley Stevens, George Slusher, Roosevelt Slusher, John Wynn, and Curtis Simpson, be, and the same hereby are, dismissed. Leonard Abner Luther Ellis Roger Frazier Walter Fusten Raymond Holt John Hopkins J. Kinchley Ed Love Albert Madden Oscar B. Maples Roy Abner J. P. Aired O. S. Aired Don Anderson S. T. Anderson Earl Ayers E. G. Bailey APPENDIX A Roy Meek Champ Miller James Miller Morgan Miller Jim Riddlespurg Manford Saylor John Simpson Garnett Slagle E. W. Stetzer APPENDIX B Plez Bailey Cecil Barnes Clayborn Bowling Isom Bowling Sneedon Bowling Heanon Brown Rufus Buell THE GOOD COAL COMPANY 157 Henry Bundy George Caldwell Walter Campbell Jesse Carrol E. G. Clay Dillard Clotfilter Luther Collins Elmer Cook Fred Crawford Ernest Cureton Sam Cureton Henry C. Dawn John Disney Everett Dozier John Eagle Roy Ferril George Hackler Tom Harber Conda Hatmaker Earl Hawkins Elijah Helton Glen Helton .Rader Helton Elmer Hensley Ed Howard F. F. Howard Alfred Hunt W. S. Hunter James Jackson Randal Jarvis Lee Jeffreys Frank Johnson Arlie Jones Elton Jones Herman Jones Killus Jones Leander Jones Oliver Jones W. M. Kelly Clayton Kirby Tom Kirklin J. W. Knuckles Bill Lamb Austin Lawsom Laurence Lawsom Sherman Lawsom W. D. Lawsom Sherman E. Mardis Roy McGregory Theodore McGregory Lindsey McKnight Jim McKnight Joe McLain Lige McLain A. B. Noe Alonzo Noe Greene Noe James Noe Carl Nottingham Theodore Parker Tillman Perry Lowell Price Estil Rapier Fred Reynolds Raymon Reynolds Bill Ridemour Bill Risden Dee Scalf Estes Shackelferd C. E. Skiles Walter Smith Ben Spurlock Elmer Spurlock George Spurlock George Stines L. D. Stines Louis Stines George S. Sullivan Cecil Tallent Noah Trent Louis Vaughn Clarence Waldin Rosco Wardrup John Watson Jess Winger W. H. Wormsley F. L. Wright James H. Wyrick J. T. Wyrick 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C From September 7, 1937, to the date of the hearing, John Wenger, Stonewall Jackson, Roscoe Jones, and the following persons named in Appendix B had either obtained no employment or had done only a few so-called odd jobs: E. G. Bailey Oliver Jones Plez Bailey Joe McLain Henry Bundy Lige McLain E. G. Clay Carl Nottingham Elmer Cook Theodore Parker Elijah Helton Dee Scalf Ed Howard Walter Smith James Jackson Louis Stines Arlie Jones George S. Sullivan Elton Jones Roy Sturgill Killus Jones Louis Vaughn Leander Jones It was stipulated at the hearing that the following persons named in Appendix B had not secured any substantially equivalent em- ployment: Roy Abner J. P. Aired O. S. Aired Don Anderson S. T. Anderson Earl Ayers Cecil Barnes Clayborn Bowling Isom Bowling Sneedon Bowling Heanon Brown Rufus Buell George Caldwell Walter Campbell Jesse Carrol Dillard Clotfilter Luther Collins Fred Crawford Ernest Cureton Sam Cureton Henry C. Dawn John Disney Everett Dozier John Eagle Roy Ferril George Hackler Tom Harber Conda Hatmaker Earl Hawkins Glen Helton Rader Helton Elmer Hensley F. F. Howard Alfred Hunt W. S. Hunter Randal Jarvis Lee Jefferys Frank Johnson Herman Jones W. M. Kelly Clayton Kirby Tom Kirklin J. W. Knuckles Bill Lamb Austin Lawsom Laurence Lawsom THE GOOD COAL COMPANY Sherman Lawsom W. D. Lawsom Sherman E. Mardis Roy McGregory Theodore McGregory Lindsey McKnight Jim McKnight A. B. Noe Greene Noe James Noe Tillman Perry Lowell Price Estil Rapier Fred Reynolds Raymon Reynolds Bill Ridemour Bill Risden Estes Shackelferd C. E. Skiles Ben Spurlock Elmer Spurlock George Spurlock George Stines L. D. Stines Cecil Tallent Noah Trent Clarence Waldin Rosco Wardrup John Watson Jess Winger W. H. Wormsley F. L. Wright, James H. Wyrick J. T. Wyrick 159 The record contains no showing as to the earnings, if any, of these persons during the period from September 7, 1937, to the date of the hearing. About a month prior to the hearing Roy Sturgill secured employ- ment at the Clover Splint Coal Company; however there is no evidence of his earnings while there employed.