Flat Creek Coal Co.

In the Matter of FLAT CREEK COAL COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. 1. O. and PROGRESSIVE MINE WORKERS OF AMERICA, DISTRICT # 5, AFFILI- ATED WITH THE A. F. OF L., PARTY TO THE CONTRACT In the Matter of FLAT CREEK COAL COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. O. Cases Nos. C-1403 and R-1603, respectively.Decided November 13, 1939 Coal Mining Industry-Settlement : stipulation providing for compliance with the Act, including disestablishment of company-dominated union and reinstate- ment with back pay in specified amount as to one employee-Order: entered on stipulation-Investigation of Representatives : stipulated ; respondent refuses to recognize either of rival labor organizations unless certified by the Board- Unit Appropriate for Collective Bargaining : stipulated ; all persons employed in the mining operations of the respondent as production employees, excluding superintendents , mine foremen , section foremen , room bosses, face bosses, top bosses, entry bosses, electricians in a supervisory capacity, all other supervisory employees, and "guards" or "watchmen"-Representatives : eligibility to partici- pate in choice : person reinstated pursuant to Board's Order ; stipulation as to- Election Ordered: pursuant to stipulation. Mr. Arthur R. Donovan, Mr. Colonel C. Sawyer, and Mr. Robert D. Malarney, for the Board. Mr. J. C. Trader, of Providence, Ky., for the respondent. Mr. Ed. J. Morgan, of Madisonville, Ky., and Mr. Earl E. Houck, of Washington, D. C., for the United. Mr. John R. Kane, of Springfield, Ill., for the Progressive. Mr. Langdon West and Miss, Margaret Holmes, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organizations, herein called the United, the National 17 N. L. R. B., No. 45. 546 FLAT CREEK COAL COMPANY 547 Labor Relations Board, herein called the Board, by the Regional Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint 1 dated October 20, 1939, against Flat Creek Coal Com- pany, Providence, 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), and (3) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. A copy of the com- plaint accompanied by notice of hearing was duly served upon the respondent, the United, and Progressive Mine Workers of America, District #5, affiliated with the American Federation of Labor, herein called the Progressive. The respondent did not file an answer to the complaint. On or about October 18, 1939, the United filed with the Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the Act. On October 20, 1939, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, Article III, Section 10 (c) (2), and Article II, Section 36 (b), of the National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation upon the petition and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice and further ordered that the two cases be consolidated. On October 23, 1939, the respondent, the United, the Progressive, and counsel for the Board entered into a stipulation in settlement of the case subject to the approval of the Board. This stipulation provides as follows : Flat Creek Coal Company hereinafter called the Respondent; United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organizations, hereinafter sometimes called the United; the Progressive Mine Workers of America, District #5, affiliated with the American Federation of Labor, hereinafter sometimes called the Progressive; and Arthur R. Donovan, Regional Attorney for the Eleventh Region of the National Labor Relations Board, Colonel C. Sawyer and Robert D. Malarney, Attorneys, National Labor Relations Board, here- inafter sometimes called the Board, hereby stipulate and agree that : 1 Although this case had been consolidated with several others by orders of the Board dated August 9, 1937, May 3, 1939, and July 17, 1939, respectively , these orders of consolidation were revoked by the Board 's order dated October 20, 1939. 548.. DECISIONS OF .NATIONAL LABOR RELATIONS BOARD I Upon amended charges filed by the United on October 11, 1939, the National Labor Relations Board, by its Regional Direc- tor for the Eleventh Region, acting pursuant to authority granted in Section 10 (b) of the National Labor Relations Act (49 Stat. 449), hereinafter sometimes called the Act, and pur- suant to authority. granted by the Board's Rules and Regula- tions, Series 2, Article II, Section 5, issued its Complaint on the 20th day of October, 1939, against the Respondent. II . Upon a Petition duly filed by the United on October 18, 1939, the Board, on October 20, 1939, directed that an investigation of bargaining representatives be made pursuant to Section 9. (c) .of . the Act. Upon authorization by the Board, the Regional Direc- tor for the Eleventh Region, issued notice of hearing on October. 20, 1939. In the petition filed by the United, it was stated that both. the United and the Progressive claim to have been desig- nated as' collective bargaining representative by employees in the. unit alleged in said petition to be appropriate, and the United and the Progressive are each a party to said proceeding instituted by said petition by virtue of the Board's Rules and Regulations, Series 2, Article 3, Section 3. III The Respondent, the United, and the Progressive withdraw all motions and other pleadings filed by them in the proceedings herein, except that the United does not withdraw the amended charges and the petition hereinbef ore mentioned in Articles I and II. IV . The Respondent, the United and the Progressive, hereby waive their right to a hearing or hearings in these cases and all parties expressly agree that the amended charge filed on October 11, 1939, the complaint issued on October 20, 1939, and notice of hearing, the petition filed by the United on October 18, 1939, the Order of the National Labor Relations Board directing an investigation and the notice of hearing pursuant to this Order for investigation, and this stipulation, may' be introduced in the record in-the proceedings herein, by filing with the Chief Trial Examiner of the National Labor Relations Board at Washington, D. C. FLAT CREEK COAL- COMPANY V 549 The Respondent, the r United, and the Progressive, hereby acknowledge service of the complaint and notice of_he*a.r1Dg -upon the complaint and of the petition and notice of hearing pursuant to the Board's Order directing investigation and hearing and expressly waive any right or privilege which they may have for ten (10) days notice of hearing and to the holding bf 'a hearing or hearings in these cases and also waive any right, or p'r'ivilege which they may have to the making of findings of fact and con- clusions of law by the Board. VI The Respondent specifically admits each and every, allegation in paragraphs I and II of the Board's complaint herein and stipu- lates and agrees that it is engaged in interstate commerce within the-meaning of Section 2 (6) and (7) of the Act. VII The United, the Progressive and the Independent Miners Union, are, each and all of them, labor organizations within the meaning of Section 2, subdivision (5) of the Act. VIII It is agreed by and between the Respondent and the Progres- sive that the contract now in force and effect between the Re- spondent and the Progressive is hereby cancelled and is void and of no effect; provided, however, that nothing in this stipu- lation shall preclude the Respondent from hereafter making an agreement with the Progressive or any other labor organization (not established, maintained or assisted by any action defined in the National Labor Relations Act as an unfair labor practice) -requiring, as a condition of employment, membership therein, if such labor organization is the representative of the employees as provided in Section 9 (a) of the Act; and it is agreed that the Respondent will not recognize the Progressive or any other labor organization as the exclusive representative of its employees' until and, unless such labor, organization is certified by the Board as such exclusive representative_ih the manner hereinafter provided. .IX It is hereby stipulated and agreed that all persons employed in 'the, mining operations of the Respondent as production- em- ployees, excluding superintendents, mine foremen, section fore- 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men, room bosses, face bosses, top bosses, entry bosses, electri- cians in a supervisory capacity, all other supervisory employees, and "guards" or "watchmen", constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. X It is hereby stipulated and agreed by the Respondent, the United, and the Progressive, that a question has arisen concern- ing the representation of the employees in the bargaining unit set forth in Article IX of this stipulation in that the United and the Progressive each claim to have been designated by em- ployees in the unit set forth above as representative for purposes of collective bargaining, within the meaning of the Act, and that Respondent refuses to recognize either the United or the Progressive as the exclusive representative of all the employees in said unit until and unless the Board has made a certification pursuant to Section 9 (c) of the Act, in the manner hereinafter more particularly set forth. XI The Respondent, the United, and the Progressive, stipulate and agree that the Board shall forthwith issue a Direction of Election. The election shall be conducted within thirty (30) days from the issuance of the Direction of Election by the Board and shall be conducted in accordance with and pursuant to the Act, the Board's Rules and Regulations, and decisions of the Board in representation cases. The election shall be for the pur- pose of determining whether the eligible employees desire to be represented for the purposes of collective bargaining by the United, the Progressive, or by neither. The employees eligible to vote in this election shall be all the employees in the appro- priate unit set forth in Article IX, above, on the payroll of Respondent one week preceding issuance of a Direction of Elec- tion pursuant to this Article and all those employees ordered reinstated as a result of this stipulation. This stipulation and the Election Report filed on the results of the election shall constitute competent evidence upon which the Board may make a certifica- tion pursuant to Section 9 (c) of the Act. XII Upon the basis of the amended charge filed by the United on October 11, 1939, the complaint herein and this stipulation, the Respondent expressly consents to the issuance by the National Labor Relations Board of an Order to the following effect: FLAT CREEK COAL COMPANY ORDER 551 Upon the basis of this stipulation and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Flat Creek Coal Corpora- tion, Madisonville, Hopkins County, Kentucky, its officers, agents, successors, and assigns,,shall.: 1. Cease and desist from : (a) In any 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 activity for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act; '(b) Discouraging membership in the United Mine Workers of America, District #23, affiliated with the Congress of Indus- trial Organizations, or any other labor organization of its em- ployees, or encouraging membership in the Progressive Mine Workers of America, District #5, affiliated with the American Federation of Labor, or any other labor organization of its em- ployees, by discharging or refusing to reinstate any of its em- ployees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment ; (c) Dominating or interfering with the administration of the Independent Miners Union, or dominating or interfering with the formation or administration of any other labor organization of its employees, or contributing support to any such labor organization ; (d) Recognizing the Independent Miners Union as the Repre- sentative of any of its employees for the purposes of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; 2. Take the following affirmative action to effectuate the poli- cies of the National Labor Relations Act: (a) Offer to Cobey Woodward full reinstatement to his former position, or if such position is unavailable, to a position substan- tially equivalent thereto, without prejudice to any rights and privileges previously enjoyed by him. (b) Make whole Cobey Woodward for wages lost in conse- quence of his discharge by Respondent by payment to Cobey Woodward of the sum of One Hundred Dollars ($100). 247334-40-vol. 17-30 55552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Withdraw and continue to withhold all recognition of the Independent Miners Union as a representative of any of its employees for the purpose of collective bargaining with the Respondent in respect to rates 'of pay, wages, hours of- employ- ment, and other terms or conditions of employment, and com- pletely disestablish the Independent Miners Union as such representative. (d) Immediately post notices 'in conspicuous places through- out its plant and maintain such notices for a period of sixty (60) consecutive days or for the period until the Board issues its certification in Case No. XI-R-241, whichever period proves to be of shortest duration, stating (1) that the Respondent will cease and desist as aforesaid, (2) and that the Respondent will take the affirmative action as aforesaid; which notice shall contain the substance of the Order, but need not be in the exact language thereof; (e) Notify the Regional Director for the Eleventh Region of the National Labor' Relations Board within a period of ten' (10) days after the entry of this Order what steps have been taken to comply with said order. XIII The Respondent.hereby consents to the entry by an appropri- ate United States Circuit Court of Appeals, upon application by the Board, of a decree enforcing an Order of the Board as herein set forth in Article XII, above, and hereby waives further notice of the application for such decree. The United and the Progressive expressly waive any right or privilege to contest the entry of this decree by an appropriate Circuit Court of Appeals and hereby waive further notice of application for entry thereof. XIV Wherever the facts, spelling of names, titles or other material and documents in the record of the : proceedings herein shall appear inconsistent with the names, titles or other material set out and made part of this stipulation, the spelling of names, titles and other material in this stipulation shall be considered correct. XV This stipulation shall be subject in all-respects to the approval of the Board and -shall become effective -immediately upon approval by the Board. If this stipulation- is- not approved by the Board, it shall be of no force and effect and shall not be used as evidence against the parties hereto in any subsequent proceeding herein. FLAT CREEK COAL COMPANY ' 553 XVI' The entire agreement between all parties hereto is contained within the terms of this stipulation, and there is no verbal agree- - ment of any kind which varies, alters, or adds to said stipulation in any respect. On. November 10, 1939, the Board issued its order approving the above stipulation, making it part of the record, and transferring the proceeding to the Board for the purpose of entry of a decision and order by the Board. Upon the basis of the above stipulation and the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 2 .The respondent, a Kentucky corporation with its principal office and place of business at :Providence, . Webster.: County, Kentucky, is engaged at a place 'of 'business called the Flat Creek Mine near Madisonville, Hopkins County, Kentucky, in the mining, sale, and, distribution of coal. The respondent, in the course and conduct -of its business, causes and has continuously caused a substantial quantity of machinery, equipment, and other materials, used in its business at the Flat Creek Mine, to be purchased and transported in interstate commerce from and through States of the United States other than the State of ' Kentucky to the said Flat Creek Mine and causes and has continu- ously caused a substantial quantity of coal mined by it to be sold, delivered, and transported in interstate commerce from its said Flat Creek Mine in the State of Kentucky. The .respondent agreed that it is engaged in interstate commerce within the meaning of the Act. We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. H. THE ORGANIZATIONS INVOLVED _ United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organizations; the Progressive Mine Work- ers of America, District #5, affiliated with the American Federation of Labor; and Independent Miners Union, are labor organizations as defined in Section 2 (5) of the Act. 2 The facts set forth in this section are based upon allegations in the complaint admitted by the respondent. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION In accordance with the terms of the stipulation, we find that the United and the Progressive each claimed to have been designated by employees in the unit hereinafter found to be appropriate for the purposes of collective bargaining as their bargaining agent and that the respondent refuses to recognize either the United or the Progres- sive as the exclusive representative of all the employees in said unit until and unless the Board has made a certification pursuant to Section 9 (c) of the Act, and that, therefore, a question has arisen concerning, representation of the employees of the respondent. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce. and the free flow of commerce. V. THE APPROPRIATE UNIT We find, in accordance with the terms of the stipulation, that all persons employed in the mining operations of the respondent as pro- Auction employees, excluding superintendents, mine foremen, section foremen, room bosses, face bosses, top bosses, entry bosses, electricians in a supervisory capacity, all other supervisory employees, and "guards" or "watchmen," constitute a unit appropriate for the pur- poses of collective bargaining, and that such unit will insure to the said employees the full benefit of their right to self-organization and collective bargaining and will otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of the employees of the respondent can best be resolved by the holding of an election by secret ballot. In accordance with the terms of the stipulation, we find that the employees eligible to vote in the election shall be all employees in the appropriate unit on the pay roll of the respondent one week preceding the issuance of our Direction of Election, including the employee ordered reinstated as a result of the Board's Order, infra. FLAT CREEK COAL COMPANY 555 Upon the basis of the above findings of fact and the stipulation, and upon the entire record in the case, the Board makes the following : CONCLusIONs OF LAW 1. United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organizations, and Progressive Mine Workers of America, District #,5, affiliated with the American Fed- eration of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 2. A question affecting commerce has arisen concerning the repre- sentation of employees of the Flat Creek Coal Company, Providence, Webster County, Kentucky, within the.meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 3. All persons employed in the mining operations of the respond- ent as production employees, excluding superintendents, mine fore- men, section foremen, room bosses, face bosses, top bosses, entry bosses, electricians in a supervisory capacity, all other supervisory employees, and "guards" or "watchmen," constitute a unit appropriate for col- lective. bargaining, within- the ° meaning of Section 9 (b) of the Act. ORDER Upon the basis of the above findings of fact, stipulation, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Flat Creek Coal Corporation, Madisonville, Hopkins County, Kentucky, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) In aiy 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- activity for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act; (b) Discouraging membership in United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, or encouraging membership in Progressive Mine Workers of America, District #5, affiliated with the American Federation of Labor, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment; 556 DECISIONS OF NATIONAL LABOR RELATIO'N'S BOARD '(c) 'Dominating: or 'interfering with the. administration of the Independent Miners Union; or dominating or interfering with the formation or administration of any other labor organization of its employees, or contributing support to any such labor organization; . (d) Recognizing the Independent Miners Union as the Representa- tive of any of its' employees for the purposes -of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, -hours. of employment, or other conditions of employment. 2. Take the following affirmative action which the Board finds will effectuate the policies of the National Labor Relations Act : (a). Offer to Cobey Woodward 'full reinstatement to his former ..position, or if such position is unavailable, to a position substantially equivalent thereto, without prejudice to any rights and privileges previously enjoyed by him; (b) Make whole Cobey Woodward for wages lost in consequence of his discharge by Respondent by payment to Cobey Woodward of the sum of One Hundred Dollars ($100) ; (c) Withdraw and continue to withhold all recognition of the -Independent Miners Union as a representative of any of its employees for the purpose of collective bargaining with the Respondent in respect to rates of pay, wages, hours of employment, and other terms or conditions of employment, and completely disestablish the Independ- ent Miners Union as such representative; (d) Immediately post notices in conspicuous places throughout its plant-and maintain such notices for a period of sixty (60) consecutive days or for the period until the Board issues its certification in Case No. R-1603, whichever period proves to be of shortest duration, stating ''(1) that the Respondent will cease and desist as aforesaid, (2) and that the Respondent will. take the affirmative action os aforesaid; which notice shall contain the substance of the Order, but need not be in the, exact language thereof; . (e) Notify the Regional Director for the, Eleventh Region of the National Labor Relations Board • within. a period of ten (10) days after the entry of this Order what steps have been taken to comply 'with said order. DIRECTION OF ELECTION By virtue • of and pursuant to the power vested in the National Labor' Relations Board by Section '9 (c) of the National Labor -Relations Act, and pursuant to Article III, Section 8, of National • Labor Relations Board Rules and Regulations-Series 2, it is hereby DIxECT i that, as part of the investigation ordered by the Board 'to .ascertain representatives for the purposes of collective bargaining with Flat Creek Coal Corporation, Madisonville; Hopkins County, FLAT CREEK COAL COMPANY 557 Kentucky, an election by secret ballot shall be conducted within thirty (30) days from the date of this Direction under the direc- tion and supervision of the Regional Director for the Eleventh Region, acting in this matter as agent for the National Labor Rela- tions Board and subject to Article III, Section 9, of, said Rules and .Regulations, among all persons employed in the mining operations of -Flat Creek Coal Corporation, Madisonville, Hopkins County, Ken- tucky, as production employees on the pay roll of the respondent one week preceding the issuance of this- Direction of Election, includ- ing the employee ordered reinstated as a result of the Board's order but'excludirig superintendents, mine foremen, section foremen, room bosses; face bosses, top bosses, entry bosses, electricians in a super- visory capacity, all other supervisory employees, and "guards" or "watchmen," to determine whether they desire to be represented by .United Mine Workers of America, District ' #23, affiliated with the Congress of Industrial Organizations, or Progressive Mine Workers of America, District #5, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither.