Hart Coal Co.

In the Matter of HART COAL COMPANY AND HART COAL CORPORATION and UNITED MINE WORKERS OF AMERICA, DISTRICT # 23, AFFILIATED WITH THE C. I. 0. and PROGRESSIVE MINE WORKERS OF AMERICA, DISTRICT '•#5, AFFILIATED WITH THE A. F. of L., PARTY TO THE CONTRACT In the Matter of HART COAL COMPANY AND HART COAL CORPORATION and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED WITH THE C. I. 0. Cases Nos. C-1419 and R-1607, 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. Gordon, Gordon cfc Moore, of Madisonville, Ky., for the respondents. 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. 17 N. L. R. B., No. 53. 641 642 DECISIONS OF NATIONAL LABOR RELATIONS 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 complaint ' dated October 20, 1939, against Hart Coal Company and Hart Coal Corporation, Morton's Gap, Kentucky, herein called the respondents , alleging that the respondents had engaged in and were 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 Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint accompanied by notice of hearing was duly served upon the respondents, the United , and Progressive Mine Workers of America, District #5, affiliated with the American Federation of Labor, herein called the Progressive. The respondents 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 respondents 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 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. On October 31, 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. On November 10, -1939, the respondent , the United, the Progressive, and counsel for the Board entered into a supplemental stipulation amending the s 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 con- solidation were revoked by the Board 's order dated October 20, 1939. HART COAL COMPANY 643 complaint. The stipulation and the supplemental stipulation are set forth below : STIPULATION Hart 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, 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, herein- after sometimes called the Board, hereby stipulate and agree that : I Upon amended charges duly filed by the United on August 31, 1939, the National Labor Relations Board, by its Regional Director 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 Regulations, Series 2, Article 2, 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 30, 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 the proceeding, (XI-R-235), 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 Progressive withdraw all motions and other pleadings filed by them in this proceeding, 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 31, 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 in- vestigation and the notice of hearing pursuant to this Order for investigation, and this stipulation, may be introduced in the record in this proceeding by filing with the Chief Trial Exam- iner of the National Labor Relations Board at Washington, D. C. V The Respondent, the United, and the Progressive, hereby acknowledge service of the complaint and notice of hearing 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 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 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 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- HART COAL COMPANY 645 tion shall preclude the Respondent from hereafter making an agreement with the Progressive or any other labor organization (not established, maintained or assisted by an 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; 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 or- ganization is certified by the Board as such exclusive representa- tive in the manner hereinafter provided. IX It is hereby stipulated and agreed that all production em- ployees of the Respondent, excluding superintendents, mine foremen, section foremen, room bosses, face bosses, top bosses, en- try bosses, electricians in a supervisory capacity, all other super- visory 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 in that the Respondent refuses to recognize either the United or the Progressive as the exclusive representative of all the em- ployees 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 646 DECISIONS Or NATIONAL LABOR RELATIONS BOARD 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 eligi- ble 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 issuance 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 herein 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 Hart Coal Company,. Mortons Gap, 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. HART COAL COMPANY 647" 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 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 poli- cies of the National Labor Relations Act; (a) Offer to J. B. Cotton immediate and full reinstatement. to his former position or to a position equivalent thereto without prejudice to any rights and privileges previously enjoyed by him : (b) Make whole J. B. Cotton for wages lost in consequence of his discharge by payment to him of the sum of one hundred' dollars ($100) and by discharging any obligations of the said J. B. Cotton to the Respondent which has arisen by virtue of rent accruing between the time of his discharge and the time of his reinstatement pursuant to this Order; (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 Re- spondent in respect to rates of pay, wages, hours of employment, and other terms or conditions of employment, and completely dis- establish 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-235, '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; this 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 appropriate, 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- 247384-40-vol. 17-42 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the application for such decree. The United and the Pro- gressive 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 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 of 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. 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. SUPPLEMENTAL STIPULATION It is hereby stipulated, consented to and agreed, by and be- tween Hart Coal Company; United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organi- zations; the Progressive Mine Workers of America, District #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 Rob- ert D. Malarney, Attorneys, National Labor Relations Board, as follows : 1. That paragraph VIII of the complaint in the above en- titled proceedings, numbered XI-C-574, be deemed amended by interlineation so that the first sentence thereof shall read as follows : "Thereafter, and on or about August 20, 1938, the Independent became merged with the Progressive." HART COAL COMPANY 649 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 and order by the Board. Upon the basis of the above stipulation, supplemental stipulation, and the entire record in the case, the Board makes the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 2 Hart Coal Company, a Delaware corporation, is engaged in the mining, sale, and distribution of coal at a place of business called the White City mine near Morton's Gap, Kentucky.3 During the last several years the respondent, Hart Coal .Company, has had an average annual production of 500,000 tons of coal. In the course and conduct of its business, Hart Coal Company causes and has continuously caused a substantial quantity of coal, consisting of more than 50 per cent of the coal mined, sold, and distributed by it, to be supplied, delivered, and transported in interstate commerce. The respondent, Hart Coal Company, 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 Fed- eration of Labor; and Independent Miners Union, are labor organi- zations 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 2 The facts set forth in this section are based upon allegations in the complaint admitted by the respondent. 8 Hart Coal Corporation , a Delaware corporation , owned and operated the Victoria #k11 mine located near Madisonville , Kentucky , and the White City mine near Morton's Gap, Kentucky. Pursuant to a petition in bankruptcy filed with the United States District Court for the Western District of Kentucky by Hart Coal Corporation under Section 77 '(b) of the Bankruptcy Act, the Hart Coal Company was organized under the laws of the State of Delaware. Subsequent to its organization, Hart Coal Company took over the assets of Hart Coal Corporation and since October 1935 has operated the mining prop- erties previously operated by Hart Coal Corporation. In January 1938 the Victoria #11 mine was closed by order of the Kentucky State Department of Mines and since that time Hart Coal Company has operated only the White City mine. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 em- ployees, and "guards" or "watchmen," constitute 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, including the employee ordered re- instated as a' result of the Board's order, infra. Upon the basis of the above findings of fact, stipulation, supple- mental 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- HART COAL COMPANY 651 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 Hart Coal Company, Morton's Gap, Ken- tucky, 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 em- ployees, 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, 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 the Hart Coal Company, Morton's Gap, 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 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 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 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 J. B. Cotton immediate and full reinstatement to his former position or to a position equivalent thereto without prejudice to any rights and privileges previously enjoyed by him; (b) Make whole J. B. Cotton for wages lost in consequence of his discharge by payment to him of the sum of one hundred dol- lars ($100) and by discharging any obligation of the said J. B. Cotton to the respondent which has arisen by virtue of rent accru- ing between the time of his discharge and the time of his rein- statement pursuant to this Order; (c) 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; (d)' 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-1607, 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 afore- said ; this 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 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 Hart Coal Company, Morton's Gap, 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 HART COAL COMPANY 653 the National Labor Relations Board and subject to Article. III, Sec- tion 9, of said Rules and Regulations, among all persons employed in the mining operations of the Hart Coal Company, Morton's Gap, Kentucky, as production employees on the pay roll of the respondent 1 week preceding the issuance of this Direction of Election, including J. B. Cotton, 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, affili- ated 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.