Empire Mining Co.

In the Matter of EMPIRE MINING COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. 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 EMPIRE MINING COMPANY and UNITED MINE WORK- ERS OF AMERICA , DISTRICT #23, AFFILIATED, WITH THE C. I. O. Cases Nos. C-1404 and R-160., respectively.Decided November 13, 1939 Coal Mining Industry-Settlement : stipulation providing for compliance with the Act, including disestablishment of company-dominated union-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 as production employees in the pit mine and the strip mine of the respondent near Mannington , Kentucky, excluding superintendents , mine fore- men, section foremen, room bosses, face bosses, top bosses, entry bosses, elec- tricians in a supervisory capacity, all other supervisory employees , and "guards" or "watchmen"-Election Ordered: pursuant to stipulation. Mr. Arthur R. Donovan, Mr. Colonel C. Sawyer, and Mr. Robert D. Malarney, for the Board. Mr. David D. Terhune, of Mannington, 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 Labor Relations Board, herein called the Board, by the Regional Director for the Eleventh Region (Indianapolis, Indiana), issued 17 N. L. R. B., No. 46. 558 EMPIRE MINING COMPANY 559 its complaint 1 dated October 20, 1939, against Empire Mining Com- pany, Mannington, Christian County, Kentucky, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1),. (2), and (3) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint 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 Progres- sive. 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 representatives 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 Regula- tions-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. 2 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 : Empire Mining Company, hereinafter called the Respondent; United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organizations, hereinafter some- times 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, hereinafter sometimes called the Board, hereby stipulate and agree that : I Upon amended charges duly filed by the United on August 30, 1939, the National Labor Relations Board, by its Regional Di- t Although this case had been consolidated with several others by orders of the Board dated August 9, 1937 , May 3, and July 17, 1939 , respectively , these orders of consolidation were revoked by the Board 's order dated October 20, 1939. 2 The name of Robert Nance was incorrectly inserted in the caption of the complaint case in the order of consolidation. 560 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD rector 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 pursu- ant to authority granted by the Board's Rules and Regulations, Series 2, Article II, Section 5, issued its Complaint on the 20th clay 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 investi- gation of bargaining representatives be made pursuant 'to Sec- tion 9 (c) of the Act. Upon authorization by the Board, the Regional Director 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 designated 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 pro. ceeding instituted by said petition by virtue of the Board's Rules and Regulations, Series 2, Article III, 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 hereinbefore mentioned in Articles I and II of this : stipulation. 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 charges filed. on August, 30, 1939, the complaint and the notice of hearing issued on'Octo- 'ber 20, 1939 , 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 . Washing- ton, D. C. V . . The Respondent , the United, and' the Progressive hereby. acknowledge due service of the complaint and notice of hearing and of the petition and notice of hearing .pursuant to the Board's EMPIRE MINING COMPANY 561: 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 of a hearing or hearings in these cases and also waive any right or privilege which they may have to the making of findings of fact and conclusions 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 stip- ulates 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 (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 stipulation shall preclude the Respondent from hereafter making an agree- ment 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) requir- ing, as a condition of employment, membership therein, if. such labor organization is the representative of the employees as pro- vided in Section 9 (a) of the Act. It is further 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 in the manner hereinafter provided. IX . It is hereby stipulated and agreed that all persons employed as production employees in Respondent's pit mine and strip mine near Mannington, Kentucky, 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 purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 employees in the unit set forth above as representative for purposes of collective bargaining, within the meaning of the Act, and in 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. 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.andsshall 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 purpose 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 the Respondent one week preceding issuance of a Direction of Elec- tion pursuant to this Article. This stipulation and the Election Report filed on the results of the election shall constitute compe- tent evidence upon which the Board may make a certification pursuant to Section 9 (c) of the Act. XII Upon the basis of the amended charges filed by the United on August 30, 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 : ORDER 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 Empire Mining Com- EMPIRE MINING COMPANY 563 pany, Mannington, 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 Industrial Organizations, or any other labor organization of its employees, 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 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 employ- ment ; (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 employ- ment; 2. Take the following affirmative action to effectuate the policies of the National Labor Relations Act; (a) 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 repre- sentative ; (b) 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 cer- tification in Case No. XI-R-238 whichever period proves to 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be of shorter duration, stating (1) that the Respondent will cease and desist as aforesaid, (2) and that the Respondent will take the affirmative action as aforesaid; these notices shall con- tain-the substance of the Order, but need not be in the exact language thereof ; (c) 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 these proceedings 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 ap- proval 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. 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. EMPIRE MINING COMPANY 565 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 $ The respondent, a Kentucky corporation with its principal office and place of business in or near Mannington, Christian County, Kentucky, is engaged at a place of business in Christian County, Kentucky, called the Christian County Mine, in the mining, sale, and distribution of coal. The respondent, in the course and conduct of its business, has con- tinuously caused a substantial quantity of coal, consisting of more than 87 per cent of the products mined, sold, and distributed by it, to be supplied, delivered, and transported in interstate commerce from its Christian County Mine- in the State of Kentucky. For the period from January 1 to November 30, 1938, the respondent produced 26,163 tons of coal at its Christian County Mine. 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. II. THE ORGANIZATIONS INVOLVED United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organizations; the Progressive Mine Workers 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. HI. 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. 8 The facts set forth in this section are based upon allegations in the complaint admitted by the respondent. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 commerce and the free flow of commerce. V. THE APPROPRIATE UNIT We find, in accordance with the terms of the stipulation, that all persons employed as production employees in the pit mine and the strip mine of the respondent near Mannington, Kentucky; excluding superintendents, mine foremen, section foremen, room bosses, face bosses, top bosses, entry bosses, electricians in a superviory capacity, all other supervisory employees, and "guards" or "watchmen," con- stitute a unit appropriate for the purposes 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 1 week preceding the issuance of the Direction of Election, infra. 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 Empire Mining Company, Mannington, Christian 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 as production employees in the pit mine and the strip mine of the respondent near Mannington, Kentucky, EMPIRE MINING COMPANY 567 excluding 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," constitute a unit appropriate for collective 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 Na- tional Labor Relations Act, the National Labor Relations Board hereby orders that the Empire Mining Company, Mannington., Christian 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 United Mine Workers of Amer- ica, District #23, affiliated with the Congress of Industrial Organi. zations, or any other labor organization of its employees , or encour- aging 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; (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 represent- ative 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) Withdraw and continue to withhold all recognition of the Independent Miners Union as a representative of any of its em- ployees for the purpose of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment, and other 247384-40-vol. 17-37 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms or conditions of employment, and completely disestablish the Independent Miners Union as such representative; (b) Immediately post notices in conspicuous places throughout its plant and maintain such notices for a period of sixty (60) consecu- tive days or for the period until the Board issues its certification in Case No. R-1602 whichever period proves to be of shorter duration, stating (1) that the respondent will cease and desist as aforesaid, (2) and that the respondent will take the affirmative action as afore- said ; these notices shall contain the substance of the Order, but need not be in the exact language thereof; (c) 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with the Empire Mining Company, Mannington, Christian County, Kentucky, an election by secret ballot shall be conducted within thirty (30) days from the date of this Direction under the direction and supervision of the Regional Director for the Eleventh Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regu- lations, among all persons employed as production employees in the pit mine and the strip mine near Mannington, Kentucky, of Empire Mining Company, Mannington, Christian County, Kentucky, on the pay roll of the respondent 1 week preceding the issuance of this Direction of Election, but 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," 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.