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. O. 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. O. Cases Nos. C-1412 and I?-1607, respectively SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES April ^?5, 1940 On November 13, 1939, the National Labor Relations Board, herein called the Board, issued a Decision, Order, and Direction of Election in the above-entitled case.I Pursuant to the Direction of Election, an election by secret ballot was conducted on December 12, 1939, at Morton's Gap, Kentucky, under the direction and supervision of the Regional Director for the Eleventh Region (Indianapolis, Indiana). On January 17, 1939, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, issued and' duly served upon Hart Coal Com- pany, Morton's Gap, Kentucky, herein called the Company, United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organizations, herein called the United, and Progressive Mine Workers of America, District #5, affiliated with the American Federation of Labor, herein called the Progressive, an Election Re- port containing a tally of the ballots, and his findings and recommendations. In his Election Report the Regional Director reported in part as follows : i 17 N L R B (i41 23N L R.B, No 16. 194 HART COAL COMPANY I 195 Total Number of Employees Alleged Eligible to Vote____ 326 Total Number Voted__________________________________ 303 Total Number of Valid Votes Cast_____________________ 170 Total Number of Votes for the UNITED MINE WORKERS OF AMERICA, District #23, affiliated with the C. I. O__-___ 77 Total Number of Votes for the PROGRESSIVE MINE WORK- ERS OF AMERICA, District #5, affiliated with the A. F. of L------------------------------------------ 89 Total Number of Votes for NEITHER Organization------- 4 Total Number of Blank Ballots________________________ 0 Total Number of Void Ballots________________________ 0 Total Number of Challenged Ballots____________________ 133 II. CHALLENGED BALLOTS In regard to the 133 challenged ballots which had been placed in ,sealed envelopes, the undersigned ruled that the 83 employees engaged in, production work at Mine No. 3 were eligible to vote. Regarding the challenged ballots of employees at Mines Nos. 1 and 2, the Director ruled that 9 were eligible, 25 were not eligible because of their occupation, and 16 were to remain challenged because sufficient information had not been submitted to permit the Director to decide on the question of eligibility. III. COUNTING OF VALID CHALLENGED BALLOTS In accordance with the above ruling, the representatives of the principal parties were reconvened on December 28, 1939 for the purpose of opening the sealed envelopes and counting such ballots ,as, were declared eligible. The undersigned hereby makes his findings with respect to the results of the election following the inclusion of those ballots ruled valid. Total Number of Employees Alleged Eligible to Vote ----- 326 Total Number Voted_________________________________ 303 Total Number of Valid Votes Cast _____________________ 262 Total Number of Votes for the UNITED MINE WORKERS OF AMERICA , District # 23, affiliated with the C . I. O----- 138 Total Number of Votes for the PROGRESSIVE MINE WORK- ERS OF AMERICA, District # 5, affiliated with the A. F.of L------------------------------------------ 119 Total Number of Votes for NEITHER Organization ------- 5 Total Number of Blank Ballots__ _____________________ 0 Total Number of Void Ballots____ ____________________ 25 Total Number of Challenged Ballots___________________ 16 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. RULING ON THE SIXTEEN CHALLENGED BALLOTS A subsequent investigation disclosed that of these ballots, 5 of the challenged voters, namely, Tom Fowler, T. B. Prince, Buell DeMoss, Pete DeMoss and Iley Whitfield were not entitled to cast a ballot because they were not eligible employees as described in the Direction of Election. As the counting of the remaining 11 challenged ballots would not materially effect the results of the election, a finding as to these is unnecessary. On January 20, 1940, the Company filed its objections to the con- duct of the ballot and the Election Report, requesting that the election be set aside and that a new election be held. The Company objected to the conduct of the ballot and the Election Report upon the grounds, inter alia, that the Regional Director had improperly ruled upon challenged ballots, that the Company was denied the right of having a representative present at the polling place during the elec- tion, and that due to intimidation and coercion on the part of the United the real choice of a bargaining agent for its employees was not ascertained by the election. On January 22, 1940, the Progressive filed its objections to the conduct of the ballot and the Election Re- port, and requested that the election be set aside and that a new election be held. The Progressive objected to the conduct of the ballot and the Election Report upon grounds substantially similar to those advanced by the Company.2 On January 24 and February 10, 1940, respectively, the United filed its answers to the objections made by the Company and by the Progressive. In its answers the United denied the allegations made by the Company and by the Progressive, and prayed that the objec- tions be overruled and that the United be certified as the representa- tive of the Company's employees. On February 27, 1940, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and served upon the par- ties his Report on Objections to Conduct of Ballot and Election Report, in which, after investigation, he ruled with respect to the objections to his original rulings on the challenged ballots, that T. B. Prince, one of the five employees previously -determined by him to be ineligible, was eligible and that the remaining 11 employees upon whom he had made no ruling were also eligible. He stated, however, that "As the result of the election will not be materially affected by the counting of the additional 12 valid ballots, such ballots will 2 The Progressive did not object to the absence of a company representative at the bai loting nor to certain of the rulings on challenged ballots. HART COAL COMPANY 197 remain in their original sealed envelopes." 3 He further reported each of the other objections made by the Company and the Progressive, respectively, to be without merit and overruled them. Thereafter, the Progressive and the Company each filed a letter with the Board in support of their original objections. The Board has considered the Election Report, the objections and affidavits filed by the Company and by the Progressive, the answers and affidavits filed by the United, and the Report on Objections to Conduct of Ballot and Election Report, and finds that the objections filed by the Company and by the Progressive do not present substan- tial or material issues with respect to the conduct of the ballot or the Election Report.' The requests of the Company and the Pro- gressive that the election be set aside are hereby denied. By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY CERTIFIED that United Mine Workers of America, Dis- trict #23, affiliated with the Congress of Industrial Organizations, has been designated and selected by a majority of the persons employed in the mining operations of the Hart Coal Company, Morton's Gap, Kentucky, 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," as their representative for the purposes of collective bargaining and that pursuant to Section 9 (c) of the National Labor Relations Act, United Mine Workers of America, District #23, affiliated with the Congress of Industrial Organizations, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment. MR. WILLIAM M. LEISERSON, concurring and dissenting : I am of the opinion that it would be better policy to open and count the 13 challenged ballots of employees who have been found eligible to vote in order that the complete results of the election might be ascertained. The United still retained 138 votes out of 274 valid votes cast. The Board is of the opinion that C T Dukes , one of the group of 25 employees at Mines Nos 1 and 2 found by the Regional Director to be ineligible, is eligible to vote, and so finds This leaves 13 challenged ballots of employees eligible to vote, which have not been counted in the tabulated vote We affirm the Regional Director 's ruling that it is unnecessary to count such ballots, since , even if it be assumed that all 13 voted for the Progressive, it would not affect the result of the election in which the United received 13S votes, a majority of the 275 ballots cast. 248034-41-vol 23--14