Norton Coal Corp.

In the Matter of NORTON COAL CORPORATION and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. O. and PRO- GRESSIVE MINE WORKERS OF AMERICA, DISTRICT #5, AFFILIATED WITH THE A. F. OF L., PARTY TO THE CONTRACT In the Matter of NORTON COAL CORPORATION and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. O. Cases Nos. C-1405 and-R-1601, respectively.-Decided November 13, 1939 Coal Mining Industry-Settlement: stipulation providing for compliance with the Act, including disestablishment of company-dominated union and reinstate- rnent with back pay in specified amounts as to certain employees-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 (including the Crabtree and Norton Alines) as production employees, excluding superintendents, mine foremen, sec- tion foremen, room bosses, face bosses, top bosses, entry bosses, electricians in a supervisory capacity, all other supervisory employees, and "guards" or "watch- men"-Representatives: eligibility to participate in choice: employees 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. Gordon, Gordon & Moore, of Madisonville, 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 17 N. L. It. B., No. 47. 569 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Norton Coal Corporation, Nortonville, Hopkins County, Kentucky, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint accom- panied by notice of hearing was duly served upon the respondent, the United, and Progressive Mine Workers of America, District #5, affil- iated with the American Federation of Labor, herein called the Pro- gressive. 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 National Labor Relations Board Rules and Regulations-Series 2, or- dered 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 pro- vides as follows : Norton Coal Corporation, 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, Dis- trict #5, affiliated with the American Federation of Labor, here- inafter sometimes called the Progressive; and Arthur R. Dono- van, Regional Attorney for the Eleventh Region of the National Labor Relations Board, Colonel C. Sawyer and Robert D. Malar- ney, 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 Direc- 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. The name of Robert Nance was incorrectly inserted in the caption of the complaint case in the order of consolidation. NORTON COAL CORPORATION 571 tor for the Eleventh Region, acting pursuant to authority granted in Section 10 (b) of the National Labor Relations Act (49 Star. 449), hereinafter sometimes called the Act, and pursuant to au- thority granted by the Board's Rules and Regulations, Series 2, Article 2, Section 5, issued its Complaint on the 20th day of Octo- ber, 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 hereinbefore 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 charges filed on August 30, 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 pro- ceedings herein, by filing with the Chief Trial Examiner of the National Labor Relations Board at Washington, D. C. V The Respondent, the United, and the Progressive, hereby ac- knowledge .service of the complaint and notice of hearing upon the complaint and of the petition and notice of hearing pursuant 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 conclu- sions of law by the Board. VI The Respondent specifically admits each and every allegation in paragraphs 1 and 2 '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 Respond- ent 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 agreement with the Progressive or any other labor organization (not estab- lished, maintained or assisted by any action defined in the Na- tional 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 in the manner hereinafter provided. IX It is hereby stipulated and agreed that all persons employed in the mining operations of the Respondent (including the Crab- tree and Norton mines) as production employees, excluding super- intendents, mine foremen, section foremen, room bosses, face bosses, top bosses, entry bosses, electricians in a supervisory capac- ity, all other supervisory employees, and "guards" or "watchmen," constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. NORTON COAL CORPORATION X 573 It is hereby stipulated and agreed by the Respondent, the United, and the Progressive, that a question has arisen concerning 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 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 and shall be conducted in accordance with and pursuant to the Act, the Board's Rules and Regulations, and decisions of the Board in representa- tion 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 appropriate unit set forth in Article IX, above, on the payroll of Respondent one week preceding issu- ance of a Direction of Election 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 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 Norton Coal Corporation, 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nortonville, 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 dis- charging 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 organ- ization of its employees, or contributing support to any such labor organization; (d) Recognizing the Independent Miners Union as the rep- resentative 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 policies of the National Labor Relations Act : (a) Offer to the employees listed below immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to any rights and privileges which they might have : 1. Ruby Carlton 5. Melvin Oates 2. Dan Cavanaugh 6. W. A. Oglesby 3. J. W. Darnell 7. Gilmore Price 4. Irving Oates 8. Ezra Tittsworth (b) Make whole the employees listed below by payment to them of the sums set opposite their names which constitute NORTON COAL CORPORATION 575 wages lost in consequence of layoffs by the Respondent of the said employees : 1. Ruby Carlton______ $100 5. Melvin Oates ----------- $100 2. Dan Cavanaugh---- $100 6. W. A. Oglesby ---------- $100 3. J. W. Darnell------ $50 7. Gilmore Price__________ $50 4. Irving Oates ------ $50 8. Ezra Tittsworth________ $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 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-237, 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 con- tain 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 here- inabove set forth in Article XII, above, and hereby waives fur- ther 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. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 proceed- ing herein. xv' 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 s The respondent, a Kentucky corporation with its principal office and place of business in Nortonville, Hopkins County, Kentucky, is engaged at a place of business in Nortonville, Kentucky, called the Norton Mine and at another place of business in Illsley, Kentucky, called the Crabtree 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 50 per cent of the products mined, sold, and distributed by it as a part of its business at its Norton Mine and at its Crabtree Mine, to be supplied, delivered, and transported in interstate commerce from its Norton Mine and Crabtree 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 continu- ous 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 Workers 8 The facts set forth in this section are based upon allegations in the complaint admitted by the respondent. NORTON-COAL CORPORATION 577 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. 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 Sec- tion 9 (c) of the Act, and that therefore a question has arisen con- cerning 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 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 in the mining operations of the respondent (includ- ing the Crabtree and Norton Mines) as production employees, 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 the purposes of col- lective bargaining, and that such unit will insure to the said em- ployees 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 ferms of the stipulation, we find that the employees eligible to vote in the election shall be all employees in the appropriate unit on the 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay roll of the respondent 1 week preceding the issuance of our Direction of Election, including the employees ordered reinstated as a result of the Board's order, 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 Norton Coal Corporation, Nortonville, Hopkins 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 (including the Crabtree and Norton Mines) as production em- ployees, 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 collective bargain- ing, 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 Norton Coal Corporation, Nortonville, 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 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 NORTON COAL CORPORATION 579 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 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 which the Board finds will effectuate the policies of the National Labor Relations Act : (a) Offer to the employees listed below immediate and full rein- statement to their former or substantially equivalent positions with- out prejudice to any rights and privileges which they might have: 1. Ruby Carlton 5. Melvin Oates 2. Dan Cavanaugh 6. W. A. Oglesby 3. J. W. Darnell 7. Gilmore Price 4. Irving Oates 8. Ezra Tittsworth (b) Make whole the employees listed below by payment to them of the sums set opposite their names which constitute wages lost in consequence of lay-oafs by the respondent of the said employees : 1. Ruby Carlton________ $100 5: Melvin Oates_________ $100 2. Dan Cavanaugh------ $100 6. W. A. Oglesby-------- $100 3. J. W. Darnell-------- $50 7. Gilmore Price________ $,0 4. Irving Oates_________ $50 8. Ezra Tittsworth______ $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) con- secutive days or for the period until the Board issues its certification in Case No. R-1601, whichever period proves to be of shortest dura- tion, stating ( 1) that the respondent will cease and desist as afore- said, (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; 580 DECISIONS OF 1TATIONAL LABOR RELATIONS BOARD (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 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 Norton Coal Corporation, Nortonville, Hopkins County, Ken- tucky, 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 Regulations, among all persons employed in the mining operations of the Norton Coal Corporation, Nortonville, Hopkins County, Kentucky, as production Employees in the employ of the respondent during the pay-roll period :immediately preceding the date of this Direction of Election, includ- ing the employees ordered reinstated as a result of the Board's order but 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," 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.