Diamond Coal Co.

In the Matter of DIAMOND COAL COMPANY and UNITED MINE WORKERS OF AMERICA DISTRICT #23 Case No. R-1859.Decided June 1 2,1940 Coal Mining Industry-Investigation of Representatives: controversy concern- ing representation of employees : refusal by employer to recognize union as exclusive representative: conflicting claims of rival organizations-Unit Appro- priate for Collective Bargaining: production employees with specified exclusions ; no contest-Election Ordered Mr. J. C. Cannaday, of Providence, Ky., and Mr. Abner C. Johnston, of Madisonville, Ky., for the Company. Mr. L. R. Fox, Mr. Edward J. Morgan, and Mr. Earl Swvers, of Madisonville, Ky., for the United. Mr. John R. Kane, of Springfield, Ill., and Mr. Jewell Blanks and Mr. J. T. Gooch, of Madisonville, Ky., for the Progressive. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On January 16, 1940, United Mine Workers of America District #23, herein called the United, filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Diamond Coal Company, Providence, Kentucky, herein called the Company, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 22, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 24 N. L. R. B., No. 60. 611 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 3, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the United, and upon Progressive Mine Workers of America, District #5, herein called the Progressive, a labor organization claiming to represent em- ployees directly affected by the investigation. Pursuant to the notice, a hearing was held on May 27, 1940, at Providence, Kentucky, before Arthur R. Donovan, the Trial Examiner duly designated by the Board. The Company, the United, and the Progressive were represented by counsel and participated in the hearing. At the commencement of the hearing, the Trial Examiner granted a motion to intervene filed by the Progressive. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial. Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Diamond Coal Company is a corporation engaged in the mining of coal at two mines in Providence, Kentucky. In 1939 the Company produced approximately 272,000 tons of coal valued at approximately $324,000. Approximately 65 per cent of the Company's total produc- tion in 1939 was shipped by it to points outside the State of Kentucky. The Company employs approximately 350 employees. It admits that it is engaged in commerce within the meaning of Section 2 (6) and. (7) of the. Act. II. THE ORGANIZATIONS INVOLVED . United Mine, Workers of America District #23 is a labor organiza- tion affiliated with the Congress of Industrial Organizations, admitting to membership the production employees of the Company, excluding supervisory employees, guards, and watchmen. Progressive Mine Workers of America, District #5, is a labor organization affiliated with the American Federation of Labor. It admits to membership the same classes of employees as the United. III. THE QUESTION CONCERNING REPRESENTATION In the early part of 1939, the United and the Progressive each re- quested the Company to bargain with it as the representative of the majority of the employees of the Company. The Company refused DIAMOND COAL COMPANY 613 to bargain with either the United or the Progressive, stating that it, doubted their claims to a majority. We find that a question has arisen concerning the representation of employees of the Company. 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 Company 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 The United and the Progressive contend that the appropriate unit should consist of all production employees in Mine 1 and Mine 2 of the Company, excluding superintendents, mine foremen, section foremen, room bosses, face bosses, top bosses, entry bosses, electricians in a super- visory capacity, all other supervisory employees, guards, and watch- men. The Company did not challenge the propriety of this unit. We see no reason for departing from the unit agreed upon by the United and the Progressive. We find that all the production employees in Mine 1 and Mine 2 of the Company, excluding superintendents, mine foremen, section fore- men, room bosses, face bosses, top bosses, entry bosses, electricians in a supervisory capacity, all other supervisory employees, guards, and watchmen, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Com- pany the full benefit of their right to self-organization and to col- lective bargaining and 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 employees of the Company can best be resolved by the holding of an election by secret ballot. The parties agreed at the hear- ing that in the event the Board directed an election, all the employees who were employed from May 1 to May 27, 1940, inclusive, excluding employees who had quit or been discharged for cause during that period and employees who have since quit or been discharged for cause, should be eligible to vote. We find that those employees of the Company within the appropriate unit who were employed from May 1 to May 27, 1940, inclusive, shall be eligible to vote, excluding those who had 283035-42-vol. 24-40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quit or been discharged for cause during that period and employees who have since quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Diamond Coal Company, Providence, Ken- tucky, within the mealting of Section-9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production employees in Mine 1 and Mine 2 of the Company, excluding superintendents, mine foremen, section foremen, room bosses, face bosses, top bosses, entry bosses, electricians in a supervisory capacity, all other supervisory employees,-guards, and watchmen, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part, of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Diamond Coal Company, Providence, Kentucky, an election by secret ballot shall be conducted as early as possible, but not later than 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 production employees in Mine 1 and Mine 2 of the Company who were employed from May 1 to May 27, 1940, inclusive, excluding superintendents, mine foremen, section foremen, room bosses, face bosses, top bosses, entry bosses, electricians in a supervisory capacity, all other supervisory employees, guards, watchmen, and employees who had quit or been discharged for cause between May 1 and 27, 1940, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by United Mine Workers of America District #23, affiliated with the Congress of In- dustrial Organizations, or by Progressive Mine Workers of America, District' #5, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither.