Ruckman Coal Co.

In the Matter of RucKMAN COAL COMPANY and UNITED NINE 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 RUCKMAN COAL COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. O. Cases Nos. C-1409 and R 1606, respectively.Decided November 13, 1939 Coal Dlininzg Industry-Settlement: stipulation providing for compliance with the Act, including disestablishmeut of company-dominated union and reinstate- ment and back pay-Order: entered on stipulation-Investigation of Representa- tives: stipulated: respondent refuses to recognize either of rival labor organiza- tions 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"-Rep- resentatives: eligibility to participate in choice: employees reinstated pursuant to Board's Order ; stipulation as to --Rlcction Ordered: pursuant to stipulation. Mr. Arthur R. Donovan, Mr. Colonel C. Sawyer, and Mr. Robert D. Malarney, for the Board. Mr. F. V. Ruckman, 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. Jo7zn 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 its 17 N. L. R. B., No. 50. 604 RUCKMAN COAL COMPANY 605 complaint 1 dated October 20, 1939, against Ruckman Coal Company, Providence, Webster County, 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 Sec- tion 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 accompanied by notice of hearing was duly served upon the respondent, the United, and Progressive Mine Workers of Amer- ica, 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 representa- tives 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, ordered an investigation upon the petition and authorized the Re- gional 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. The stipu- lation provides as follows : STIPULATION Ruckman 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 Na- tional Labor Relations Board, Colonel C. Sawyer and Robert D. Malarney, Attorneys, National Labor Relations Board, herein- after sometimes called the Board, hereby stipulate and agree that : I Upon charges duly filed by the United on December 7, 1938, the National Labor Relations Board, by its Regional Director for the 1 This case was 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. .606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eleventh Region, acting pursuant to authority granted in Section 10 (b) of the National Labor Relations Act (49 Stat . 449), here- inafter sometimes called the Act, and pursuant to authority granted by the Board's Rules and Regulations, 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 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 al- leged 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 III, Section 3. III The Respondent, the United, and the Progressive with- draw all motions and other pleadings filed by them in the pro- ceedings 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 December 7, 1938, the complaint and notice of hearing issued on October 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 intro- duced in the record in the proceedings 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 acknowledge due service of the complaint and notice of hearing and of the petition and notice of hearing pursuant to the RUCK MAN COAL COMPANY 607 Board's Order directing investigation and hearing and expressly waive any right or privilege which they may have, foi ten. (10) days notice of hearing and to the holding of a hearing or hear- ings 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 :stipulates 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 stipula- tion 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 National Labor Relations 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 or- ganization is certified by the Board as such exclusive repre- sentative in the manner hereinafter provided. IX It is hereby stipulated and agreed that all persons employed as production employees at Respondent's Duvan Mine, 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 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 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 appropri- ate unit set forth in Article IX, above, on the payroll of Re- spondent one week preceding issuance of a Direction of Election pursuant to this Article, and 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 com- petent 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 December 7, 1938, the complaint herein and this stipulation, the Respondent herein expressly consents to the issuance by the Nation Labor Relations Board of an Order to the following effect : RUCKMAN COAL COMPANY ORDER 609 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 Ruckman Coal Com- pany, Providence, 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 of [sic] other mutual aid or protection, as guaranteed in Sec- tion 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 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 or [sic] 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 Quinton Gibson immediate and full reinstate- ment to his former position or a position substantially equiva- lent thereto without prejudice to any rights or privileges pre- viously enjoyed before his discharge; (b) Offer to Frank Yarbrough the second position as runner on a cutting machine job which hereafter becomes available at Respondent's Duvan mine without prejudice to any rights and privileges which he previously enjoyed before his discharge; 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) The employees listed below are to be included in a list of laid-off employees, all of whom are now being given preference to jobs they are capable of filling, prior to the hiring of new employees, and upon reinstating them pursuant to this list, accord them such rights and privileges as they previously enjoyed before their discharge: 1. Nacolian C. Cates. 2. S. C. Childress. 3. E. M. Greer. 4. J. E. Greer. 5. Herbert Pierce. (d) Tay on January 10, 1940 the sum of $50.00 to Herbert Pierce. (e) 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 coin- pletely disestablish the Independent Miners Union as 'such representative; (f) Immediately post notices in conspicuous places through- out its plant and maintain such notices for a period of sixty (60) consecutive days for [sic] the period until the Board issues its certification in Case No. XI-R-233, 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; these notices shall con- tain the substance of this Order, but need not be in the exact language thereof; (g) 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 appro- priate United States Circuit Court of Appeals, upon applica- tion 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 Appleals and hereby waive further notice of application for entry thereof. RUCI MAN COAL COMPANY XIV 611 Wherever the facts, spelling of names, titles or other material and documents in the record of this proceeding 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. The entire agreement between all parties hereto is contained within the terms of this stipulation, and there is no verbal agreement of any kind which varies, alters, or adds to said stipulation in any respect. On November 10, 1939, the respondent, the United, the Progressive, and counsel for the Board entered into a Supplemental Stipulation which provides as follows: SUPPLEMENTAL STIPULATION It is hereby stipulated, consented to and agreed, by and be- tween Ruckman Coal Company ; United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organizations; the Progressive Mine Workers of America, Dis- trict #5, affiliated with the American Federation of Labor; 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, as follows : 1. That paragraph VII of the complaint in the above entitled proceedings, numbered XI-C-315, be deemed amended so as not to include in it any reference to Iray Morse, and that his name be stricken from the complaint. On November 10, 1939, the Board issued its order approving the above Stipulation and Supplemental Stipulation, making them part of the record in the case, and transferring the proceeding to the Board for the purpose of entry of a Decision, Order and Direction of Election by the Board. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above stipulation, as supplemented, 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 in the town of Providence, Webster County, Kentucky, is engaged at a place of business called the Duvan mine near the town of Providence, Webster County, Kentucky, in the min- ing, sale, and distribution of coal. Respondent, in the course and conduct of its business, causes and has continuously 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, to be supplied, delivered, and trans- ported, in interstate commerce from its Duvan 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 con- tinuous 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 .$k5, 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 accortlane'e 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 Pro- gressive 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 iris-en, concerning representation of the employees of the respondent. o The facts set forth in this section are based upon allegations In the complaint admitted by the respondent. Ri7CKMAN COAL COMPANY IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE 613 . 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 liersons employed in the mining operations of the respondent as pro- duction 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 1 week preceding the issuance of the Direc- tion 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 a'n.d the stipulation, and upon the entire record in the case, the Board makes the following : COI CLUSIONS OF LAW 1. United Mine Workers of America, District x$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 Ruckman 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. 614 DECISIONS OF NATIONAL" LABOR RELATIONS BOARD 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 appropri- ate for collective bargaining, within the meaning of Section 9 (b) of- the Act. ORDER Upon the basis of the above findings of fact, stipulation, supple- mental 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 Ruckman Coal Company, Providence, Webster 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 ac- tivities 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.; (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 Act : (a) Offer to Quinton Gibson immediate and full reinstatement to his former position or to a ,position equivalent thereto without RUCKMA•N COAL COMPANY 615 prejudice to any rights and privileges previously enjoyed before his. discharge; (b) Offer to Frank Yarbrough the second position as runner on, it cutting machine job which hereafter becomes available at re- spondent's Duvan mine without prejudice to any rights and privi- leges which he previously enjoyed before his discharge; (c) The employees listed below are to be included in a list of laid-off employees, all of whom are now being given preference to, jobs they are capable of filling, prior to the hiring of new employees, and upon reinstating them pursuant to this list, accord them such rights and privileges as they previously enjoyed before their discharge : 1. Nacolian C. Cates. 2. S. C. Childress. 3. E. M. Greer. 4. J. E. Greer. 5. Herbert Pierce. (d) Pay on January 10, 1940, the sum of $50 to Herbert Pierce; (e) 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, terms or conditions of employment, and completely disestablish the, Independent Miners Union as such representative; (f) Immediately post 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-1606, 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; this notice shall contain the substance of the Order, but need not be in the exact language thereof; (g) 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. AND IT is FURTHER ORDERED that the name of Iray Morse be, and hereby is, stricken from the complaint and the complaint, in so far- as it relates to the case of Iray Morse, be, and hereby is, dismissed.. 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- 247384-40-vol. 17-40 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations 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 Ruckman Coal Company, Providence, Webster 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, act- ing 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 Ruckman Coal Company, Providence, Webster County, Kentucky, as produc- tion employees on the pay roll of the respondent 1 week preceding the issuance of this Direction of Election, including 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 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.