Kelley's Creek Colliery Co.

In the Matter of KELLEY'S CREEK COLLIERY CO. and INTERNATIONAL UNION, PROGRESSIVE MINE WORKERS OF AMERICA Case No. C-1255.-Decided November 13, 1939 Coal Mining Industry-Interference, Restraint, and Coercion : anti-union statements, urging, persuading, and warning employees not to join one union and to retain membership in another ; threatening employees with discharge because of membership in one union ; responsibility for acts of : supervisory employees without authority to hire or discharge ; manager of the company store, a wholly owned subsidiary situated on respondent 's property-Agree- ment: for settlement of grievances, not availed of by employee as estopping him to charge a discrimination against him-Discrimination: discharge of employee because of membership in a union-Reinstatement Ordered: discharged em- ployee ; grounds for refusal of : alleged refusal of employees to work with em- ployee if reinstated, as-Back Pay: awarded discharged employee. Mr. W. J. Perricelli, for the Board. Mr. Charles S. Reed and Mr. Arthur B. Hodges, of Charleston, W. Va., for the respondent. Mr. Claude L. Smith, of Charleston, W. Va., for the Progressive. Mr. T. C. Townsend, of Charleston, W. Va., for the United. Mr. Guy Farmer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Union, Progressive Mine Workers of America, herein called the Progressive, the National Labor Relations Board, herein called the Board, by Philip G. Phillips, Regional Director for the Ninth Region (Cincinnati, Ohio), issued its complaint, dated January 30, 1939, against Kelley's Creek Colliery Co.,' Ward, West Virginia, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of 'The respondent is designated in the original charges as Kelley's Creek Collieries Com- pany. The amended charges and the complaint , however, designate the respondent as It appears herein. 17 N. L. R. B., No. 42. 506 KELLEY'S CREEK COLLIERY COMPANY 507 Section S (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, herein called the Act. In respect to the unfair labor practices, the complaint alleged in substance (1) that the respondent had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, by inquiring of employees concerning their union beliefs and membership, by threatening employees with dis- charge because of their Progressive membership and activity, by warning employees that discharges for Progressive membership and activity were imminent and that a certain discharge had been effected because of membership in the Progressive, by warning em- ployees that their tasks would be made more difficult if they con- tinued their activity in behalf of the Progressive, by stating to employees its refusal to deal in any manner with the Progressive, and by other acts well known to the respondent; and (2) that the respondent had discouraged membership in the Progressive and inter- fered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act, by discharging Eugene Shifflett, an employee, on or about August 23, 1938, and thereafter refusing to reinstate him because he joined and assisted the Progres- sive and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Progressive. On February 3, 1939, International Union, United Mine Workers of America, District 17, herein called the United, filed with the Re- gional Director a motion to intervene in the proceeding alleging, inter alia, that the respondent was operating under a collective agree- ment with the United, that such agreement contained provisions for the settlement of all disputes arising between the respondent and members of the United, and that Shiffiett was a member of the United and had the right to invoke the provisions of the agreement for the purpose of settling any dispute arising in connection with his alleged discharge. The motion further alleged that the respondent's em- ployees have declared that they will not work with persons who belong to the PrQgressive, and that if the Company should attempt to employ members of both the United and the Progressive "the conditions would prevail which it was the declared policy of the Act to eliminate." Acting pursuant to Article II, Section 19, of National Labor Rela- tions Board Rules and Regulations-Series 1, as amended, the Re- gional Director granted the aforesaid motion to intervene. On February 4, 1939, the respondent filed its answer admitting the allegations of the complaint concerning the nature and interstate character of its business but denying the unfair labor practices. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the alleged discriminatory discharge, the answer affirmatively alleged that Shiffiett was "laid off" for the following reasons: that just prior to his lay-off Shiffiett was engaged in the .operation of a conveyor at respondent's mine No. 1; that the con- veyor was transferred to mine No. 2 and there installed with addi- tional equipment, requiring the operator to be an experienced motor operator in order to move the mine cars under the conveyor; that Shiffiett was not qualified for such employment; and that there was no other work available which Shiffiett was capable of performing to the satisfaction of the respondent. The answer further alleged that the respondent was at all times during the period covered by the complaint operating under a contract with the United, which union now represents and at all times during the period covered by the complaint represented more than 90 per cent of the respondent's employees; and that the respondent has been advised and believes that in the event that it returns Shiffiett to work, the employees will refuse to return to work, which will result in a shut-down of the respondent's mine and irreparable loss to both the respondent and its employees. Pursuant to notice, a hearing was held on February 9, 10, 11, 13, 14, 15, 16, and 17, 1939, at Charleston, West Virginia, before J. J. Fitzpatrick, the Trial Examiner duly designated by the Board. The Board, the Progressive, and the United were represented by counsel and participated in the hearing. At the beginning of the hearing, counsel for the Progressive moved the Trial Examiner to strike from the record the motion to intervene previously filed by the United and granted by the Regional Director. The Trial Examiner denied the motion, but ruled that the participation of the United in the hearing should be limited to matters affecting its alleged agreement with the respondent. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the hearing, counsel for the re- spondent moved the Trial Examiner for leave to amend its answer with respect to the alleged discriminatory discharge to allege that Shiffiett was laid off for the reason that the conveyor which he had been operating was transferred to respondent's mine No. 2 to replace another conveyor, whose operator was continued in charge of the new machine and that there was no other work available which Shiffiett was capable of performing to the satisfaction of the respondent. The motion was granted by the Trial Examiner. At the conclusion of the hearing counsel for the Board moved to amend the pleadings to con- form to the proof. The motion was granted. The respondent then moved the Trial Examiner to dismiss the complaint. The Trial Examiner reserved ruling on the motion. The Trial Examiner made KELLEY'S CREEK COLLIERY COMPANY 509 several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the Trial Examiner's rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Following the hearing the respondent and the United filed briefs in support of their positions. On April 15, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all parties, 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) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and that it take certain specific affirmative action, including an offer to reinstate with back pay Eugene Shiffiett, the employee alleged in the complaint to have been discriminatorily discharged and refused rein- statement. In his Intermediate Report the Trial Examiner also denied the motion of respondent to dismiss the complaint, upon which he had reserved decision at the close of the hearing. For the reasons hereinafter set forth this ruling is hereby affirmed. Subsequently, on April 27, the respondent and the United filed exceptions to the Intermediate Report and requested opportunity to file briefs and present oral argument before the Board. Pursuant to leave granted by the Board, briefs, which the Board has considered, were filed on behalf of the respondent, the Progressive, and the United, and a hearing for the purpose of oral argument was held on June 6, 1939, before the Board in Washington, D. C. The re- spondent, the Progressive, and the United were represented by coun- sel and participated in the argument. The Board has considered the exceptions to the Intermediate Report, and in so far as such excep- tions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a West Virginia corporation and a wholly owned subsidiary of Valley Camp Coal Company. It is engaged in the mining and sale of coal at Ward, Kanawha County, West Virginia, where it mines 7,000 acres of coal lands. The respondent has a daily average production of about 4,000 tons of coal, 70 per cent of which is shipped outside the State of West Virginia. The respondent employs approximately 800 men in and around its mines at Ward. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Al. THE ORGANIZATIONS INVOLVED International Union, Progressive Mine Workers of America, is a labor organization, affiliated with the American Federation of Labor, admitting to its membership the production and maintenance em- ployees of the respondent. International Union, United Mine Workers of America, District 17, is a labor organization, chartered by International Union, United Mine Workers of America, which in turn is affiliated with the Con- gress of Industrial Organizations. It admits to its membership the production and maintenance employees of the respondent, excluding mine managers and top foremen. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion For a number of years prior to the advent of the Progressive at the respondent's mine in 1938, the United had maintained a local at the respondent's mines and during most of that time was the only active labor organization among its employees. During its earlier existence the United encountered opposition on the part of the respondent, but following the passage of the National Industrial Recovery Act in 1933, the respondent, acting through the Kanawha Coal Operators Association, entered into a collective agreement with the United covering wages, hours, and other conditions of employ- ment. The original contract ran for 2 years and was renewed twice thereafter for similar periods, the last renewal prior to the hearing being executed on March 31, 1937, to expire on April 1, 1939.2 In about May 1938 Joseph Ozanic, international president of the Progressive, established headquarters at Charleston, West Virginia, for the purpose of initiating an organizing drive among the coal miners in the Kanawha district where the respondent 's mines are located. Ozanic and his associates then contacted Eugene Shifflett, an employee of the respondent who had always been an aggressive union leader, and offered him a position as a Progressive organizer. Shifflett declined the offer but agreed to assist in organizing the 2 In his Intermediate Report the Trial Examiner found that this contract was not one providing for a closed shop. While both the respondent and the United took exception to this finding, neither party at any time claimed that the conduct set forth below was engaged in tinder or pursuant to a closed -shop contract. Had either the respondent or the United made such a claim we would have had before us the issue whether or not the respondent's conduct was lawful under the proviso to Section 8 ( 3) of the Act. In the absence of such a claim , however, we make no finding as to whether the agreement provided for a closed shop or whether the respondent's actions would have been justified under the proviso to Section 8 (3). We therefore confine our consideration to the issues as framed by the parties and tried at the hearing. KELLEY'S CREEK COLLIERY COMPANY 511 respondent's employees, and thereafter Shifflett and others distrib- uted Progressive literature, conducted meetings, and solicited mem- bership among the respondent's employees. By the last of August 1938, the Progressive had obtained a number of members and estab- lished a local, of which Shifflett as its acknowledged leader became the first president. Sometime in August, while the Progressive's campaign was at its height, Arthur Morgan, general superintendent of the respondent's mines, called a meeting of the respondent's supervisory employees during the course of which, according to his own admission, he instructed his subordinates to see that the respondent's contract with the United was carried out and fro have no dealings with the Pro- gressive. At about the same time Morgan called in the United's mine committee and inquired concerning the strength of the Pro- gressive. Dell Milam, who was then chairman of the committee, testified that during the discussion Morgan asked the committee what it was going to do about the activities of the Progressive and declared that the respondent wanted "to have nothing to do" with that organi- zation. Morgan denied making such statement, but since it is con- sistent with the attitude admittedly expressed by him at the super- visors' meeting referred to above, we fund that he expressed his oppo- sition to the Progressive in the manner asserted by Milani. Shortly after the above occurrences, Clinton Thompson, foreman of the respondent's mine No. 2, approached Troy Grizzell, section fore- man, and, according to the testimony of the latter, showed Grizzell a list containing the names of several Progressive members and in- structed him to get rid of them by telling them that their places had been worked out and that there was no other work available for them. Grizzell further testified that he was reluctant to carry out this order because of his sympathy with the employees thus marked for dismissal and their families; that he went to the employees on the list and warned them to give up their Progressive membership ; and that he then approached Thompson, and for the purpose of inducing him to countermand his instructions, told Thompson that the employees had been warned and were threatening to appeal to the "Labor Board" if they were dismissed. Grizzell testified that Thompson thereupon relented, telling him to let the matter rest for the time being. Grizzell's story is corroborated in part by C. W. Bowe, an employee on the blacklist,' who stated at the hearing that Grizzell came to him at about the time stated and told him that the management had ordered his dismissal because of his affiliation with the Progressive, and advised him to renounce that organization if he wanted to work for the respondent. Thompson admitted that ' The list also contained the name of Eugene Shifflett. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had a paper containing the names of several employees such as that described by Grizzell but denied that any employee was included thereon because of his membership in the Progressive. He explained that it was merely a list of workers who were in disfavor because of poor work, violations of safety rules, and similar infractions. In view of the corroborative nature of Bowe's testimony, together with the fact that the conduct attributed to Thompson was consistent with the instructions given to the supervisors by Morgan as set forth above, we accept as true Grizzell's testimony as to the true nature of the paper and of Thompson's instructions. concerning it. We also find that Grizzell warned at leash one employee, C. W. Bowe, to renounce his Progressive membership and activities. Throughout the period here under discussion, according to the testi- mony of a number of witnesses, Stanley Deal, foreman of the respondent's mine No. 1, frequently threatened employees with dis- charge because of their Progressive activities and otherwise disclosed his unmistakable antagonism toward that organization. Eugene Shifllett stated at the hearing that shortly after the first Progressive meeting on about June 18, 1938, Deal4 evinced keen interest in the outcome of the meeting and in the other activities of the Progressive, and then asserted that both he and the respondent were loyal to the United, warning Shifflett that he was liable to be discharged if he continued to identify himself with the Progressive. Shifflett testified that he then gave Deal a copy of the Act and warned him that his activities constituted a violation of the rights of employees guar- anteed thereby, and that on the following day Deal indicated that he had taken a "neutral" attitude, adding, however, that "we are working for the United ..." Another employee, Russell Barefield, testified that sometime in August, Deal told him that he (Deal) was "Under no obligations to the Progressives and could hire and fire them," and declared further that the respondent was going to "put the skids under" Shifflett. In a similar vein, Carl Stone, a crew leader, testified that in the latter part of August, Deal remarked, in the presence of Stone and other employees, that if he found as many as three employees who refused to work alongside the members of the Progressive, he would discharge any employee who belonged to. that organization and that the respondent would "back him up." Deal denied that he expressed himself in the manner set forth by the above witnesses. In view of the cumulative effect of the testimony of such witnesses together with the fact that the statements' credited to Deal were consistent with Morgan's instructions to the supervisory 4 The record refers to Deal at this point as "Teasdale," but the respondent states in its brief and it is clear from the entire record that the person to whom Shifflett referred was Deal. KELLEY'S CREEK COLLIERY COMPANY 513 employees, however, we find that he made the above-mentioned state- ments attributed to him by Shifllett, Barefield, and Stone. In addition to above activities on the part of the respondent, state- ments reflecting opposition to the Progressive were attributed by a number of witnesses to various other employees holding supervisory positions. It appears from the testimony of several of such witnesses that William Duff, a conveyor foreman, was particularly outspoken in his antagonism towards the Progressive. Two employees, Law- rence Taylor and Edward Hundley, testified that on August 22, Duff stopped the conveyor at which they and several others were employed and warned them, "If anyone here belongs to the Progressives, you had better get out, because (you) are going down the road if you don't." Another employee, Alfred Alderman, testified that on several occasions Duff warned him to be careful to whom he talked, tt stop carrying a Progressive card, and to "lay low," and that Duff further stated that the management had instructed the foremen to "disqualify" Progressive members in one way or another, either by discharging them or making it "so tough for them that they couldn't stay." Although Duff denied making any such statements, in view of the weight of the evidence to the contrary, and particularly in view of the fact that the activities attributed to him were consistent with Morgan's instructions to the supervisors, we do not credit his denials, and accordingly we find that he spoke to employees in the threatening terms described above. Harvey Seacrist, an employee, testified concerning a somewhat similar warning which he received from George Tucker, another con- veyor foreman. Sometime in August or September Seacrist had been laid off by the respondent purportedly as a temporary disciplinary measure because he had crashed a mine motor into a cutting machine. During his lay-off he engaged in a conversation with Tucker and several other employees, and one of the latter remarked that Seacrist had been laid off because he was a member of the Progressive. According to Seacrist, Tucker thereupon replied that he did not know whether or not that was the reason for the respondent's action, but that if Seacrist were reinstated he had better "keep his damned mouth shut." Tucker in effect admitted making the remark credited to him, stating that he did so because he did not wish to see the first- aid team of which Seacrist was a member broken up. In view of Tucker's admission we find that he warned Seacrist in the manner described by the latter. Similarly, another employee, Cecil Woodrum, stated at the hearing that sometime during the period under discussion, Paul Gregory, a section foreman, warned him to "stay away from" the Progressive, for the reason that it was "liable to get (him) in trouble." Gregory 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied that he issued any such warning to Woodrum. In view of the fact that the statement attributed to Gregory is consistent with the attitude expressed by the respondent through various other super- visory employees and with Morgan's instructions to the supervisors, we find that he warned Woodrum in the terms set forth above. Sometime in August Alfred Alderman, an employee already re- fered to above, applied at the company store for credit for certain merchandise and was refused. Alderman testified that R. R. Wood- rum, the store manager, explained the refusal on the ground that Alderman and 30 other employees were slated for discharge because of their Progressive membership and activities. Woodrum admitted that he withheld credit from Alderman, but testified that he did so because Alderman already was indebted to the store, and denied that he made the statement with respect to the dismissal of Progressive members. Since the alleged statement is in accord with the senti ment repeatedly expressed by the respondent through its supervisory employees, however, we accept as true Alderman's version of this incident. Sometime in September a United committee, acting with the knowledge and consent of the respondent, spent several days going through the respondent's mine for the ostensible purpose of investi- gating a controversy which had arisen between the respondent and the miners concerning the disposal of the fine coal, known as "bug dust," which results from the cutting of the mine machine into the coal vein.' The committee took along an ample supply of United membership cards, and during the course of the investigation the committee openly canvassed all employees for the purpose of per- suading them to sign such cards. Even those employees who had previously joined the United were requested to reaffirm their al- legiance as a check against the claim of the Progressive that it had made serious inroads into the United's membership. One employee, C. E. Frazier, at first refused to sign a card but later did so when Troy Grizzell told him that he had better sign, stating that he (Grizzell) would not like to see Frazier's wife and children go hungry. It is clear from the above facts that throughout the period here under discussion the respondent sought to forestall and impede the growth of the Progressive among its employees. In August, while the Progressive was attempting to gain a foothold at the mines, Arthur Morgan, the respondent's general superintendent, revealed the respondent's hostility towards the Progressive by instructing the 5 The practice was for the miners to receive pay for loading the dust if it were clean and marketable and to discard or "gob" it if it were dirty, without receiving com- pensation therefor . In this instance the respondent had claimed that the dust contained rock dust and was unmarketable and should be "gobbed." KELLEY'S CREEK COLLIERY COMPANY 515 supervisory employees to have no dealings with the Progressive and by calling in the United's mine committee and encouraging it to take counter-action against the Progressive's organizing drive. The an- tagonism to the Progressive thus disclosed by the respondent bore fruit in vigorous activity on the part of numerous supervisory em- ployees designed to break the spirit of the Progressive's campaign and to coerce and restrain employees in their organizational activi- ties. Shortly after Morgan issued the above instructions Clinton Thompson, a mine foreman, ordered Troy Grizzell, a section foreman, to get rid of a number of men because of their Progressive member- ship, and although he later relented, he did so only after Grizzell had told him that the employees were going to appeal to the Board and after Grizzell, himself a supervisor, had warned the employees in question to give up their membership in the Progressive. Likewise, during this period, other supervisory employees and persons in posi- tions of influence with respect to the employees, including Stanley Deal, a mine foreman, Paul Gregory, a section foreman, William Duff and George Tucker, conveyor foremen, and R. B. Woodrum, store manager, repeatedly urged and warned employees to renounce the Progressive and threatened employees with discharge because of their membership in that organization. It is clear from the nature of the statements niade by such supervisory employees and in the light of the employer-employee relation existing and the respondent's economic power, that they were not mere idle statements of opinion and comment but were positive threats and unmistakable expressions of hostility towards the Progressive. Finally, in sharp contrast to its unrelenting opposition to the Progressive, the respondent per- mitted the United to canvass its employees and openly to solicit mem- bership on company property during working hours. In view of the open manner in which these activities on behalf of the United were conducted we do not credit the respondent's contention that it was un- aware that the United committee was soliciting membership, and ac- cordingly we find that the United's drive was conducted with the knowledge and tacit consent, and in at least one instance, as we have hereinbefore found, with the active assistance of the respondent. The respondent contends that it is not responsible for the activities of any of its supervisory employees below the rank of foreman on the ground that they have no authority to hire or discharge. We find this contention to be without merit.,, Grizzell and Gregory were 8 See Matter of Picker X-Ray Corporation , Waite Manufacturing Division, Inc. and International Association of Machinists, 12 N. L. R. B. 1384; Matter of T. W. Hepler and International Ladies' Garment Workers Union, 7 N. L. R. B. 255; Matter of Ward Baking Company and Committee for Industrial Organization ; Matter of Ward Baking Company and Confectionery Workers International Union of America., 8 N. L. R. B. 558. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD section foremen, next in rank to the mine foreman, himself, and were in charge of a section, each containing about 90 men. Duff and Tucker were conveyor foremen, or crew leaders, and supervised the work of crews of about five men for which they received additional compensation of about 60 cents a day. Consequently, although they had no authority to hire and discharge, it is clear that each of them exercised a considerable measure of control over the employees, and was in a position of responsibility and influence as regards any dis- ciplinary action which might be taken by the respondent. Further- more, as we have pointed out above, the conduct of these employees was in accordance with the tenor of the instructions which they re- ceived from Morgan and, in the case of Grizzell, from Thompson, both of whom were admittedly high ranking supervisory employees of the respondent. Under such circumstances, the fact that they had no authority to hire and discharge cannot relieve the respondent from responsibility for the acts of such employees.7 The respondent also contends that it is not answerable for the statement of R. R. Woodrum, manager of the company store, for the reason that such store is operated by a separate corporation and has no connection with the respondent. This contention likewise is with- out merit. Although the company store is operated by the Valley Creek Stores' Company, the latter is a wholly owned subsidiary of the respondent's parent corporation, the Valley Creek Coal Com- pany. Furthermore, it is located on the respondent's property near its mines, contains the respondent's offices, and accepts scrip, issued by the respondent to its employees, in return for merchandise. In view of these circumstances it is clear that the company store is identified in fact and in the minds of the employees with the re- spondent, and that Woodrum, as manager of the store, having the power to extend, or withhold, credit to employees, is in a position where his statements have coercive effect. Consequently, the re- spondent must be deemed responsible for his statements to the em- ployees. We find that the respondent by warning employees against joining or remaining members of the Progressive, by threatening them with discharge because of their Progressive membership and activities, by in various ways expressing hostility towards the Progressive, and by permitting the United to solicit membership on company time and property, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. 7 Swift & Company v. National Labor Relations Board 106 F. (2d) ST (C. C. A. 10th, Tune 7, 1939) ; A,nerican, Mamafacturing ; Company and Nit-Art Employers. Inc., Y. National Labor Relations lJoard 106 F. (2d) 61 (C. C. A. 2d. July 26, 1939). KELLEY'S CREEK COLLIERY COMPANY 517 B. The discharge of Eugene Shifjlett Eugene Shifflett was first employed by the respondent in 1922 and, except for time off on two occasions while participating in lengthy strikes, worked for the respondent almost continuously until August 23, 1938.. During this period Shifflett performed numerous Jobs in and around the respondent's mines, some of which required more than ordinary skill and dependability, including loading coal, operating a mine motor, laying track, shooting slate, operating a conveyor, and various others. The record shows that he was trans- ferred from one position to another with considerable frequency, on occasion because the job expired, sometimes at his own request, and at other times at the request of the management. Only once does it appear that he was removed from a job because of poor pro- duction, and that occurred in the spring of 1938, at which time a machine crew of which he was a member was broken up for the rea- son that it was not producing-as much coal as the respondent ex- pected. At that time, however, Shifflett was told by his foreman, Stanley Deal, that the latter did not place the blame entirely on Shiffiett's shoulders. On one occasion during his employment Shiffiett was transferred from a position as motor operator because he refused to work overtime without pay, and again in 1937 he was discharged outright by Stanley Deal for refusing to work more than 7 hours, whereas Deal claimed but Shiffiett denied that 8 hours con- stituted the regular day for the work Shiffiett was then doing.8 In each of these instances Shifett was soon returned to his former em- ployment, in the first because his foreman asked him to return, and in the second because Deal, himself, requested Shifflett's reinstate- ment. Throughout his long term of employment at the respondent's mine, .Shifett was an active and aggressive union leader. In the begin- ning, and for many years thereafter, he was a loyal member and at times a local officer of the United. In about 1930, however, he gave up his membership in the United and helped to organize a union known as the West Virginia Mine Workers. In 1924 and again in 1931 he took part in strikes called by these respective organizations, and on each occasion was subsequently refused reinstatement by the respondent for a long period because of his active leadership in such strikes. When he returned to work for the respondent in 1934 for the first time after the 1931 strike, Shifett paid dues to the United ' Seven hours constituted the working day for inside work and 8 hours for outside labor. At the time under discussion Shifflett was engaged in opening up a drift for a new mine and on the day the mine commenced operations claimed that he was then doing inside work. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the compulsory check-off system then in existence, attended United meetings, and from that time up to and including the date of the termination of his employment was considered to be a member of that organization by both the respondent and the United. In 1938, however, as we have seen, he joined the Progressive and by the date of the termination of his employment on August 23 had become its acknowledged leader and the spearhead of its organizing campaign. On August 15, 1938, and for several months preceding that date, Shiffiett was engaged at the respondent's mine No. 1 in operating a double-chain conveyor, a machine used to convey coal outside the mine by means of receptacles attached to an endless chain. This particular conveyor was the only one of its kind at the respondent's mines, and by virtue of having worked with it for some time Shifflett was more familiar with its operation and mechanism than any other employee. A short time before, on August 1, the respondent had attempted to install a mechanical apparatus for the purpose of start- ing and stopping the conveyor and had informed Shifflett that if it worked his job would be terminated and that there was no other work for him. The device was unsuccessful, however, and after a lay=off of 1 day, Shiffiett was returned to work at his usual position. On August 15, Clarence Pauley, superintendent of the mine, in- structed Stanley Deal, mine foreman, to remove the conveyor from mine No. 1 for the purpose of transferring it to mine No. 2 and to send along a man to help install it at its new location. Deal had the conveyor removed on the same day and selected Shifflett to accompany it and assist in setting it up at mine No. 2 because, as Deal himself expressed it, Shifflett "'would understand and know as much about it or more than the majority of our men." ' Shifflett thereupon accompanied the conveyor to mine No. 2 and for several days worked with a crew engaged in setting up the ma- chine. On August 22, several days before the installation was com- pleted, however, George Tucker, conveyor foreman in charge of the crew, notified Shifflett that he was no longer needed on the job and instructed him to report back to his original place of employment. On that same day Shiffiett sought out Clarence Pauley and told him what had occurred. Pauley thereupon remarked that he had been of the opinion that Shifflett would remain at mine No. 2 for at least an- other week and then instructed Shifflett to see Stanley Deal with respect to his future employment. On the following morning, August 23, Shifflett approached Deal and asked when he might return to work and was told by the latter that there was no work available for him at that time. Shortly thereafter, on about the last of August, Shiffiett again saw Pauley and requested reinstatement and was again informed by Pauley that the respondent had no work for him. On KELLEY'S CREEK COLLIERY COMPANY 519 still another occasion, sometime in September, Shifflett approached Arthur Morgan, the respondent's general superintendent, and in- quired the reason for the respondent's failure to reinstate him, but Morgan refused to discuss the matter, stating that he did not inter- fere with the hiring and discharging of men but left affairs of that nature "up to the foreman." On August 23, the day after Shifflett was informed by Tucker that his services no longer were required at mine No. 2, the respondent hired a new employee, Aras B. Arbogast, to work at that mine. His employment card shows that Arbogast was employed as a "conveyor man," and the record indicates that within a few days after his employment he was assigned to work in connection with the conveyor which Shiffiett had been operating. The record also establishes and the respondent in fact admits that between August 23 and the hearing the respondent employed a large number of men at Shifflett's original place of employment, mine No. 1, to do work which Shifflett "could do and had done before" during his tenure of employment at the respondent's mines. The respondent takes the position that the transfer of the conveyor from mine No. 1 to mine No. 2 terminated Shifflett's job with the respondent and necessitated his lay-off. We find no merit in this con- tention. It is true, as the respondent contends, that each of the mines has a separate operating budget and its own employees. It appears, however, that both mine No. 1 and mine No. 2 are owned and operated by the respondent and that it is not unusual for employees to be transferred from one to the other as evidenced by the fact that on occasion Shifflett, himself, had been so transferred. In the light of these facts and in view of Shifflett's years of service with the respond- ent, together with his admittedly superior knowledge of the operation of the conveyor, we are impelled to the belief that Shifflett's leader- ship in the Progressive afforded the real reason for the respondent's action in refusing to transfer Shifflett permanently to mine No. 2 along with the conveyor. We are confirmed in that opinion by the fact that after the conveyor was transferred from mine No. 1 to mine No. 2 the respondent saw fit to hire a new employee to do work in connection with the conveyor which Shifflett was preeminently qualified to perform. The respondent apparently seeks to explain its refusal to reinstate Shifflett to any of the numerous jobs which admittedly became available after August 23 on the ground that he was not a satis- factory workman. The only testimony offered in support of this claim was that of Stanley Deal, his foreman, who stated at the hearing that Shifflett was not dependable and that his work was not satisfac- tery as evidenced by the fact that he had been shifted from one posi- 2 4 7 3 84-4 0-v of . 17--34 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion to another: in an effort to find a suitable place for him and by the fact that he disliked manual labor. He further testified that Shiffiett was a "disturbing influence" among the employees for the -reason that he refused to do more than he considered to be a fair day's work and because he called his fellow employees "scabs" if they worked harder than he thought proper. We find little support in the record for Deal's statement that Shiflett was a poor workman as evidenced by an aversion to physical labor and by frequent transfers. Although at the time of the termina- tion of his employment Shifliett was employed at a job which appar- ,ently required only a modicum of hard labor, we have seen that .during his long term of employment he satisfactorily performed numerous jobs requiring considerable physical exertion and that on one occasion only was he transferred because of poor production and .then the fault lay with the machine crew as a whole and could not fairly be attributed to any individual member. We are likewise unimpressed by Deal's assertion that Shifllett was a "disturbing influence" for reasons stated by Deal as set forth above. While it is true that twice during his term of employment Shifflett was in difficulty with the respondent, once because he refused to work -overtime without pay and again because he refused to work longer than 7 hours whereas Deal claimed that the regular day for that particular work was 8 hours, there is no showing that for the most -part Shiffiett's own estimate of a fair day's work did not coincide with that of the respondent. Likewise, Deal's vague general accusa- tion that Shiffiett criticized other employees in harsh terms if they did more work than he thought fitting is not supported by references on Deal's part to any particular instances of such conduct or by the testimony of any other witness. Even assuming that Shiffiett's work were unsatisfactory and that he were a "disturbing influence" for the reasons asserted by Deal, we .are convinced that his alleged shortcomings. as an employee in those respects were not determinative factors in the respondent's refusal -to employ him at any of the jobs which became vacant after August 23. The fact that, although Shifflett's deficiencies as asserted by Deal were alleged to be of long standing, the respondent nevertheless .saw fit to retain him in its employ for many years and even to reem- ploy him as late as 1937 leads us to believe that the reasons advanced by the respondent were "culled ex post facto" to screen its true motive.9 We are further impelled to that conclusion by the fact that as late as 1937 Deal, himself, the foreman upon whose testimony the 9 Matter of Highway Trailer Company and United Automobile Workers of America, Local No. 155, etc., 3 N. L. R. B. 591, enforced in toto upon consent, in National Labor Relations Board v. Highway Trailer Company , 95 F. (2d) 1012 (C. C. A. 7th, 1938). THE OHIO RUBBER COMPANY 521 ,respondent relies to demonstrate Shiffiett's failings, took active steps to bring about the latter's reinstatement. It is clear from the above-mentioned facts, considered in the light of the respondent's unmistakable hostility towards the Progressive, that the respondent seized upon the transfer of the conveyor from :one of its mines to another as a convenient pretext for ridding itself of the acknowledged leader and organizing spirit of the Progressive. From its inception at the mines as described in Section III A above, the respondent evinced unrelenting opposition to the Progressive and singled out Shiffiett in particular because of his preeminence in its campaign as a target for repeated warnings and threats of dis- -charges, culminating in Shiffiett being placed on a list of employees slated for discharge because of his Progressive activities. There- after, when Shiffiett persisted in his organizing efforts, the respondent transferred the conveyor which Shifflett was then operating to another of its mines and refused to continue Shifflett as its operator, although Shifflett had been employed by the respondent for many years and was admittedly better qualified to operate the conveyor than any other employee. And finally, after making use of Shifflett's superior knowledge of the conveyor by delegating him to help install it at its new location, the respondent then "laid off" Shifflett and has not since reemployed him although a number of new employees have been hired at mine No. 1 to perform work such as Shifflett previously has performed and is by skill and experience capable of performing. Under these circumstances the respondent's consistent refusal to reinstate Shifflett to such vacancies confirms our opinion that the respondent's original failure to transfer Shifflett along with the conveyor and his consequent "lay-off" were motivated by his Pro- gressive activities. Furthermore, even if his lay-off had been due to the termination of the particular job at which he had been employed, as the respondent claims, the respondent's refusal to employ Shifflett at any of the jobs which became available after his original "lay-off" ,clearly constitutes a discrimination in regard to hire and tenure of employment within the meaning of the Act. The respondent argues that the fact that it informed Shifflett on August 1 that if the automatic device for operating the conveyor proved successful there would be no work for him indicates that his Progressive activities did not influence the termination of his em- ployment on August 23, since he had not then been elected president of that organization. The contention is obviously untenable. Al- though Shifflett did not become president of the Progressive until about August 20, he was its acknowledged leader and most active organizer for several months prior to that date, and the fact that the respondent attempted to eliminate his job on August 1 strengthens 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rather than weakens our belief that the respondent was seeking to find a pretext for getting rid of -him because of his Progressive activities. Both the respondent and the United contend that since their col- lective agreement provides for the settlement of grievances and since Shifflett omitted to use the remedy alleged to be available to him as a member of the United under the agreement, he is estopped to charge the respondent with having discriminated against him. This contention is without merit. By virtue of Section 10 (a) of the Act the Board's jurisdiction over unfair labor practices is exclusive and subordinate to no other means of adjustment. In a proper case the Board may in the exercise of its discretion require an employee first to exhaust the remedies available to him under an agreement or otherwise before appealing to the Board. No such case is here pre- sented. In its pleadings, at the hearing, and at oral argument before the Board, the United, upon whom would devolve the responsibility for presenting Shifflett's grievance to the respondent, has consistently maintained that the termination of Shiffiett's employment was proper. It is clear, therefore, that under the circumstances of this case to dismiss this proceeding because Shiffiett did not first appeal to the United, particularly when his claim is that he was discharged because of membership in a rival organization, would defeat rather than effectuate the policies of the Act.10 We find that the respondent by terminating the employment of Eugene Shiffiett on August 23, 1938, and by thereafter refusing to reinstate him, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Progressive. We further find that by such acts the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. Shiffiett's average weekly earnings at the time of the termination of his employment were about $30. He has not been employed since his discharge and he desires reinstatement. IV. TIIE 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 its operations described in Section I above, have a close, intimate, and substantial relation to. trade, traffic, and commerce among the several States, and tend to 10 Cf. Matter of International Shoe Company and Local Unions No. 2118 and 700 Boot CC Shoe Workers International Union, affiliated with American Federation of Labor, 12' N. L. R. B . 728; Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee, 5 N. L. R. B. 908; Matter of Maryland Distillery, et al. and Distillery Workers Union 20270, et at., 3 N. L . R. B. 176; Matter of Picker X-Ray Corporation, Waite - Mai? ufacturing Division., Inc. and International Association of Machinists, 12 N. L. R. B.. 1384. KELLEY'S CREEK COLLIERY COMPANY 523 lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order the respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, including the reinstatement of Eugene Shiffiett without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he has suffered by reason of the termination of his employment by payment to him of a sum of money equal to the amount which he normally would have earned from the date of the termination of his employment on August 23, 1938, until the date of the offer of reinstatement, less his net earnings l' during said period. The respondent alleges in its answer that it is informed that in the event that Shiffiett is returned to work the other employees will refuse to work with him, which will result in a shut-down of the respondent's mine, and for that reason apparently argues that Shiffiett should not be reinstated. We find no evidence in the record that the respondent has received such an ultimatum from its employees or that the employees contemplate taking the action asserted by the respondent. Furthermore, even if such threat were in fact made, our mandate under the Act does not permit us to allow the respondent's unfair labor practices to go unremedied because of the potential hardship to the respondent arising from such threat of strike.12 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Union, Progressive Mine Workers of America, and International Union, United Mine Workers of America, District 17, are labor organizations within the meaning of Section 2 (5) of the Act. "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 elsewhere 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 f590, 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. 12Cf. Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82, 4 N. L. R. B. 498, enforced in National Labor Relations Board v. Star Publishing Company, 97 F. (2d) 405 (C. C. A. 9th, 1938), and National Labor Relations Board v. Remington Rand, Inc., 97 F. (2d) 195 (C. C. A. 2d, 1938). 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The respondent, by discriminating in regard to the hire and tenure of employment of Eugene Shiffiett, thereby discouraging mem- bership in International Union, Progressive Mine Workers of Amer- ica, has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. The respondent, by interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act has engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) 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, Kelley's Creek Colliery Co., Ward, West Virginia, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Union, Progres- sive Mine Workers of America, or any other labor organization of its employees, by discriminating in regard to hire or tenure of em- ployment or any term or condition of employment because of mem- bership in or activity on behalf of any such labor organization ; (b) 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 concerted 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) Offer Eugene Shifliett immediate and full reinstatement to his former position, or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole Eugene Shiffiett for any loss of pay he may have suffered by reason of his discharge, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of the termination of his employment on August 23, 1938, to the date of the offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due said employee, 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 KELLEY' S CREEK COLLIERY COMPANY 525 appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Post immediately in conspicuous places in and around its mines, and maintain for a period of at least sixty (60) consecutive days, notices to its employees stating (1) that the respondent will cease and desist as provided in paragraphs 1 (a) and (b) of this Order and (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; (d) Notify the Regional Director for the Ninth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith; Provided, however, that the provisions of this Order shall be subject to any valid contract now in effect or subsequently entered into between the respondent and any labor organization which contract requires as a condition of employment membership in such organization.