Mine "B" Coal Co.

In the Matter of MINE "B" COAL COMPANY and UNITED MINE WORKERS or AMERICA, DISTRICT 12, UNITED MINE WORKERS OF AMERICA, LOCAL 7469, AFFILIATED WITH THE C. I. O. Case No. R-2262.-Decided February 5, 1941 Jurisdiction : coal mining industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord recognition to union until certified by the Board ; employees who have not been reinstated and who are eligible for reinstatement pur- suant to a previous Board Order eligible to vote ; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees, excluding clerical and supervisory employees ; stipulation as to. Mr. Lester Asher, for the Board. Mr. Edmund Burke, Mr. Ray Edmundson, and Mr. Walter P. James, of Springfield, Ill., for the United. Mr. John R. Kane, of Springfield, Ill., and Mr. John P. Madden, of Gillespie, Ill., for the Progressive. Mr. Lee Ensel, of Springfield, Ill., for the'Company. Mr.,Edward Scheunemann, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF TIIE CASE On July 30, 1940, Local 7469, District 12, United Mine Workers of America, herein called the United, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois), a petition alleging that a question affecting commerce had arisen concerning the rep- resentation of employees of Mine "B" Coal Company, Springfield,, Illinois, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 11, 1941, 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. 29 N L. R B No. 75 405 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 13, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the United and Local No. 54, District No. 1, Progressive Mine Workers of America, herein called the Progressive. Pursuant to notice, a hearing was held on January 20, 1941, at Springfield, Illinois, before Gustaf B. Erick- son, the Trial Examiner duly designated by the Board. The Board, the Company, the United, and the Progressive, represented by counsel, participated in the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence bearing on the issues. At the beginning of the hearing, the Progressive moved to vacate the order of the Board direct- ing an investigation and to dismiss the petition., The motion is hereby denied. During the course of the hearing, the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed: The rulings are hereby affirmed. On January 30, 1941, pursuant to notice, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. All parties were represented by counsel and presented argument. Upon the entire record in the case the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a Delaware corporation, with its principal office and place of business at Springfield, Illinois, is engaged in the extraction, purchase, sale, and distribution of bituminous coal. During the year 1940, the Company mined, sold, and distributed bituminous coal valued at. approximately $600,000, and shipped approximately 35' per cent in value of such coal outside the State of Illinois. During the same period the Company purchased for use at its mine, raw materials valued at approximately $50,000 and it obtained approximately 50 per cent in value of such materials from outside the State of Illinois. II. THE ORGANIZATIONS INVOLVED Local 7469, District 12, United Mine Workers of America, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the Company. Local No. 54, District 1, Progressive Mine Workers of America, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Company. MINE "B " COAL COMPANY III. THE QUESTION CONCERNING REPRESENTATION 407, On December 2, 1937, the Board, after a hearing on a petition filed by the Progressive, directed an election among the employees of the Company.' On January 3, 1938, the Board, upon the basis of the election, certified the Progressive as exclusive bargaining represent- ative.2 On August 1, 1938, the Board issued a complaint against the Com- pany, upon charges filed by the Progressive, and on September 19, 1938, issued a Decision and Order, based upon a stipulation of the parties, directing'the Company to cease and desist from unfair labor practices in violation of Section 8 (1), (3), and (5) of the Act, to bargain collectively with the Progressive, and, when it opened its mine, to reemploy the persons employed in the mine on May 12, 1937, in the order theretofore established by practice.' On July 30, 1940, the United filed its petition requesting an investi- gation and certification of representatives and alleging that the Com- pany refused to bargain with any labor organization other than the Progressive until another organization was certified by the Board. On August 16, 1940, the Progressive filed charges against the Com- pany alleging, in substance, that the Company had refused to bargain with the Progressive despite the Board's Order of September 19, 1938, and that the Company and the United, in collusion, had. intimidated and coerced employees in their choice of a bargaining representative. On December 27, 1940, the United informed the Company that it claimed to represent a majority of the employees, and in substance, requested recognition as exclusive bargaining representative. On De- cember 28, 1940, the Company replied that it could,not deal With the United until it had been certified as exclusive representative by the Board. On January 11, 1941, the Board, after investigation, dismissed the charges filed by the Progressive against the Company and directed a hearing in the present proceeding. At the hearing, the Progressive, contending that no question had arisen concerning representation, offered to prove in support thereof that the Company had not complied with the Board's Order directing it to bargain with the Progressive, and that the Company and the United had intimidated and coerced the employees. We have Iaffirmed the rulings of the Trial Examiner excluding such testimony since this is a representation proceeding and since we have already dismissed the 'Matter of Mine B Coal Company and Progressive Mine Workers of America, Local No. 54, 4 N. L. R. B. 316. 2 Ibid. e Matter of Mine "B" Coal Company, the Mine B Coal Company and Elsho,ff Coal Com- pany and Progressive Miners of America, Local 54, 8 N. L. R. B 1155, enf'd by consent (C. C. A. 7), June 15, 1939. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges filed by the Progressive involving the same issues. Both the United and the Progressive have substantial membership among the employees in the unit found to be appropriate.4 We find that a question has arisen concerning 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 parties stipulated at the hearing, and we find, that all produc- tion and maintenance employees of the Company, excluding clerical and supervisory employees, constitute a ,unit appropriate for the pur- poses of collective bargaining and that such unit will insure to the employees of the Company the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. - VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representa- tion can best be resolved by the holding of an election by secret ballot. We shall, accordingly direct an election among the employees in the unit which we have found to be appropriate. The Company and the United contend that the Board should follow, its usual practice and direct that eligibility to vote in the election be governed by a current pay-roll date. The Progressive contends that the Company 'has discriminated against it in hiring new employees since July 1940, and that only persons employed by the Company prior to July 1940 should be eligible to vote in the election. The Trial 11 There was introduced in evidence a statement by the Regional Director showing that the United had submitted to him 217 application cards and 25 transfer cards, all of which bore apparently genuine signatures of persons on the Company 's August 31 , 1940, pay roll . 216 of the application cards were dated between May 1940 and Novembei 1940 and 1 card was undated. All the transfer cards were dated between October 1939 and July 1940. The Regional Director also reported that the Progressive had submitted to him 228 authorization cards, all of which bore apparently genuine signatures of persons on the Company's August 31 , 1940, pay roll . 116 of the cards were dated during the month of November 1939 and 112 were undated. The Company employs approximately 358 persons in the unit hereinafter found to be appropriate. MINE "B" COAL COMPANY 409 Examiner excluded evidence in support of this contention , and we have affirmed his ruling, particularly since the issue of discriminatory hiring was also raised by the charges filed by the Progressive against the Company on August 16 , 1940, and was determined in the dismissal of such charges by the Board on January 11, 1941. In accordance with our usual practice; we shall direct that the pay-roll date immediately preceding the Direction of Election be used to determine the eligibility of employees to vote in the election: The Progressive contends that John Snyder; Ray Tombezzi, Victor Gent, Joe Loverso , William Crompton, and Sam Prof etto should also be eligible to vote in the election on the ground that they were em- ployed by the Company on May 12, 1937, and come within the terms of the Board's Order of September 19, 1938, that all such persons should be reemployed by the Company when it reopened its mine. Since the record contains no evidence with respect to them we shall not in this Decision and Direction of Election specifically determine the eligibility of the above-named persons . We shall provide, how- ever, that all persons who have not been reinstated , and who are eligible for reinstatement under our Order dated September 19, 1938, be eligible to vote in the election. - , 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 rep- resentation of employees of Mine "B" Coal Company, Springfield, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the production and maintenance employees of the Company, excluding clerical and supervisory employees constitute a unit appro- priate 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 bargain- ing with Mine "B" Coal Company , Springfield , Illinois, an election by secret ballot shall be conducted as early as possible but not later 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Thir- teenth 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 the production and maintenance em- ployees of the Company, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including any employees who did not work during such period be- cause they were ill or on vacation, and any who were then or have since been temporarily laid off, and all persons who have not been reinstated and who are eligible for reinstatement under the Board's Order dated September 19, 1938, but excluding clerical and super- visory employees and any employees who have since quit or been discharged for cause, to determine whether they desire to be repre- sented, by Local 7469, District 12, United Mine Workers of America, affiliated with the Congress of Industrial Organizations or by Local 54, District 1, Progressive Mine Workers of America, affiliated with the American Federation of Labor; for the purposes of collective bargaining, or by neither.