Casady Coal Co.

National Labor Relations Board - Board Decisions

Feb 16, 1942

38 N.L.R.B. 1245 (N.L.R.B. 1942)

In the Matter of A. L. CASADY, DOING BUSINESS AS CASADY COAL CO.
and UNITED MINE WORKERS OF AMERICA, DISTRICT 13, SUBDISTRICT 1
Case No. C-1989.-Decided February 16, 1942
Jurisdiction : coal mining industry.
Unfair Labor Practices
Interference, Restraint and Coercion: anti-union statements and declaration of
union preference by* employer ; entering into closed-shop contract with dom-
inated union ; attempts to learn union affiliations of employees ; attempts to
persuade employees to join dominated union.
Company-Dominated Unions: formation instigated and aided by agent of re-
spondent who, though not a supervisory employee, was reasonably identified
by the employees with respondent ; opportunity of employees to select officers
and to participate in management of affairs of organization greatly restricted ;
employer held to have given support by inducing employees to join dominated
-organization,- by signing closed-shop contract with check-off with it, and
by expressing to employees his preference of it to bona fide union and his,
opinion that employees would benefit by joining.
Discrimination: discharge of employee because of refusal to join company-
dominated organization ; charges of inferior work found to be without merit.
Remedial Orders : respondent ordered to cease and desist from unfair labor
practices ; to withdraw recognition from dominated union ; to disestablish
closed-shop contract with dominated union ; to reimburse employees for
.amounts deducted from wages as fees and dues in dominated union, less' any
amount that may have been refunded by union ; and to reinstate with back
pay employee discriminatorily discharged.
Mr. Guy Farmer, for the Board.
Mr. Robert Valentine, of Centerville, Iowa, for the respondent.
Mr. James P. Agnessen, of Centerville, Iowa, for the Union.
Mr. William Hollenbeck, of Exline, Iowa, for the Alliance.
Miss Mary E. Perkins, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Mine Workers of
America, District 13, Subdistrict 1, affiliated with the Congress of
i A charge was filed on October 17, 1940, and the amended charge on February 10, 1941.
38 N. L. R. B., No. 222.
1245
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Organizations , herein called the Union, the National Labor
Relations Board , herein called the Board , by the Regional Director for
the Eighteenth Region ( Minneapolis , Minnesota ), issued its complaint
dated August 29, 1941 , against A. L. Casady, doing business as Casady
Coal Co., Exline, Iowa, herein called the respondent ,'alleging that, the
respondent had engaged in'and was 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. Copies of the complaint , accompanied by
notices of hearing thereon , were duly served upon - the respondent, the
Union, and The Independent Mine Workers Alliance, herein called
the Alliance, a labor organization alleged in the complaint to be domi-
nated by respondent. ,.
The complaint alleged in substance that the respondent : ( 1)' insti-
gated the 'formation of the Alliance in or about February +1940, and at
all times since has dominated and interfered with its formation and
administration , solicited employees to join the Alliance , threatened
them with discharge if they refused to do so, permitted the.Alliance
to solicit members and engage in other activities on, the premises of the
respondent during working hours; checked off dues from the wages of
his employees and paid them over to the Alliance , and otherwise ac-
tively fostered , promoted , and encouraged the formation and growth
of the Alliance, and contributed assistance and, support - to it; (2) for
the purpose of encouraging membership in the Alliance and for the
purpose of discouraging membership in the ' Union, entered into an
illegal written agreement with the Alliance on' or ' about August 27,
1940, requiring membership in the Alliance as , a condition of employ-
ment, and on November 29 , 1940, renewed this agreement ; ( 3) on or
about September 24, 1940, discharged Sam L . Bailey and has.sihce
refused to reinstate him, for the reason that Bailey refused and failed
to join the Alliance, pursuant to the terms of the aforesaid agreement,
and for the reason that he•had made application for membership in the
Union ; and (4 ) by these acts has interfered with, restrained ; and,co-
erced his employees in the exercise of the rights guaranteed in Section
7 of the Act. ' .
On September 13, 1941 , the respondent filed his answer , in which he
denied that he had engaged in the , unfair labor practices alleged in the
complaint, or that he was engaged in interstate commerce within the
meaning of the Act. ,
Pursuant to notice , a hearing was held at Centerville , Iowa, on Sep-
tember 15 and 16 , 1941; before George Bokat, the Trial Examiner duly
designated by the Chief Trial Examiner. 'The Board and the respond,-
ent were represented by counsel , and the Union and the Alliance by
their representatives; -all participated in the hearing.: - Full opportu-
ti
CASADY COAL 'CO. - '' 1247
nity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. At the
close of the hearing counsel for the Board moved that the pleadings
be amended to conform to the proof. The Trial Examiner granted this
motion without objection. During the course of the hearing ^the Trial
Examiner made rulings on other 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 October 17, 1941, the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon the respondent, the
Union, and the Alliance, in which he found that the respondent had
engaged in and was engaging in unfair practices affecting commerce,
within the meaning of Section 8 (1), (2), and (3) and Section 2 (6)
and (7) of the Act. He recommended that the respondent cease and
desist from such practices; that he withdraw all recognition from and
disestablish the Alliance as the representative of any of his employees
for the purposes of collective bargaining, cease giving effect to any
contracts existing between him and the Alliance, and reimburse all his
employees whose initiation fees and dues in the Alliance were checked
off by the respondent, by paying to them the amounts thus deducted
from their wages; that he offer reinstatement to Bailey, and make him
whole for any loss in earnings which he may have suffered by reason of
the respondent's discrimination against him; and that he take certain
other remedial action. No exceptions were filed to the Intermediate
Report, nor did any of the parties file a brief with the Board or request
oral argument before the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Arthur L. Casady has, since-about 1938, owned and operated a coal
mine located at Exline, Iowa, under the name of the Casady Coal Com-
pany. During the first 11 months of 1940, the respondent mined and
sold coal valued at $53,912.13,, of. which $800.45 worth was sold to pur-
chasers located outside the,-State ' of Iowa, and of which $31,907.28
worth was sold to, the Chicago, Burlington & Quincy Railroad Com-
pany, which operates a transcontinental railway. For the entire year
of 1940, the latter company purchased 4,990 tons of, coal from the re-
spondent, of which 4,376 tons were used by the railroad company to
fuel engines at its Centerville, Iowa, coaling station. The Centerville
station provides 50 percent of the coal used to fuel engines on each of -
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 regular runs out of that station, on which 20 percent, 98 percent, 85
percent and 95 percent, respectively, of the traffic carried is interstate.2
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, District 13, Subdistrict 1, is a
labor organization affiliated with the Congress of Industrial Organi- "
zations, and admits to membership employees of the respondent 3
The Independent Mine ,Workers Alliance is an unaffiliated labor
organization admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and admzinistra-
tion of the' Alliance and contribution of support to it
1. Background
In 1938, Casady, the respondent herein, purchased at a public
auction a coal mine located at Exline, Iowa. Casady, who had little
or no experience in operating a coal mine, engaged the services of Oscar
E. Anderson, an experienced coal-mining operator who had been in
the business for about 35 years. Anderson, who had been receiver of
the mine purchased by Casady,4 testified and we find, as did the Trial
Examiner; that he advised and aided Casady in the operation of the
mine, in addition to acting in the capacity of engineer and salesman.5
In the fall of 1939, the respondent's employees went out on -strike
and solicited- the assistance of the Union. About 95 percent of them
became members of the Union. About October 2,1939, the Union nego-
tiated an agreement with the respondent' providing for the check-off
of dues and a scale of wages as set forth in a master agreement (known
as the Centerville agreement) which the Union had with other coal-
mining operators in that areas In the latter part of November 1939,
8 The railroad . company also used 166 tons and 57 tons, respectively, to fuel engines at its
coaling stations in Ferry and Ashland, Nebraska Engines fueled at these, points, also,
haul passengers and freight on interstate runs
3 The Union has for some time maintained a local at Exlme The respondent' s employees,
however, appear to have signed membership cards in the Union, which the Union turned
over to the local Since none of the parties attempted to distinguish between the Union
and the local for any purpose, both are hereinafter included by reference to the Union
4 Anderson in prior years had a financial interest in an Exline mine and "was connected
with the operating end of it . . for many years."
'The duties of Anderson were described by Casady as follows , "well, he was just a
general helper . A lot of times he acted as hoisting engineer , and sometimes he would go
on the road and sell for nie "
e This agreement was not signed by Casady but by Verne Logan, the respondent's mine
superintendent . James P . Agnessen , the Union's representative , testified that Casady told
him to negotiate the agreement with Logan because he, Casady , was not a "mining man
Casady testified that, while he was agreeable to the check-off, he told Agnessen that he
could not afford to pay the scale of wages set by the Centerville agreement; he therefore
refused to sign the agreement personally , although he knew that his mine superintendent
executed it.
CASADY COAL CO. 1249
the, Union called on the respondent to pay the wage scale set forth in
the master agreement.' Casady refused and in December 1939 or, Jan-
uary 1940, the miners went out on strike. The strike failed and most
of the miners returned to work. Thereafter, and until about August
1940, the respondent operated the mine on an open-shop basis.
2. Formation of the Alliance
Anderson testified that he had in mind for some time the formation
of an independent union,
for the simple reason that if this field could get a contract where
the operators and the miners ,both could live, that is, where they
could move into the market at a certain figure, -they would be in
competition with other coal and take the place of it.
According to Anderson, he encountered difficulties in making sales
because during-the strike Casady was unable to fill his orders and as
a result purchasers were fearful of future interruptions in deliveries.
Furthermore, according to Anderson, "I had several areas in the ter-
ritory where it was a question of union coal, . . . they wanted union
coal, no matter whether it was independent or what." 9 For these rea-
sons, Anderson during the spring of, 1940, began to suggest to the
employees the formation of an independent union. Anderson testified
that in suggesting the formation of a union, he told the employees "I
think if you organize and handle this situation right, that Mr. Casady
will pay you more money." According to Anderson, he met with a
favorable response since the employees had already been discussing
the formation of a similar organization, and "they suggested that we
go ahead and see what I could do."
Anderson testified that, although when he advised Casady of what
he was doing the latter neither encouraged nor discouraged him, "he
[Casady] seemed to feel that any kind of a situation would be an
improvement over what he had there because it was more or less trou-
blesome." 9 Casady first testified that he could not recall whether he
discussed the Alliance with Anderson, but subsequently denied haying
done so. The Trial Examiner, however, accepted Anderson's'testimony
' Casady testified that at the time the agreement was executed Agnessen orally agreed
that Casady would not have to pay the wage scale set by the Centerville agreement .' There-
after, the respondent checked off the dues of the miners, but failed to pay the union scale.
Agnessen denied that ' Casady ' s failure to pay the union scale took' place pursuant to any
oral understanding to which he was a party • '
e According to Anderson , he was also motivated by-the idea that he could profit financially
by expanding the proposed labor organization to other coal mines in that area ' and becoming
the organizer or business agent of the organization.
In this connection , Anderson was referring to some extent to - the difficulty of selling
non-union coal Anderson also testified that "Casady would have felt better if we got the
labor situation stabilized where he could be assured of production ; to go out and -promise
coal and then can't deliver it, that is an unfavorable , situation " • ,
438861-42-vol. 38-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as being substantially accurate, as do we. Casady testified that at first,
when he heard of the proposed formation of the Alliance from various
employees, he "wasn't very much in favor" of it because he thought
"it might act the same way' as the [Union]," but that he "figured it
would be all right, if it was run right." We find, as did the Trial
Examiner, that Casady, far from being neutral, actually encouraged
the formation of the Alliance. This is evident from Anderson's testi-
mony as set forth above, and from the testimony of Roy Wages and
J. W. Scott. Wages, employed by the respondent as a miner and one
of the original incorporators of the Alliance and a member of its
board of directors, testified that at a time when the employees were
discussing the formation of the Alliance, Casady, during working
hours, said to him that a "union of our own [would] be a good thing
for us fellows." Wages further testified that about 1 or 2 weeks sub-
sequent to the formation of the Alliance, Casaday told him "we would
get more money . . . if we got this union." Casady did not ,deny the
first remark attributed to him but denied the second, explaining that
what he told Wages was that "they would probably raise the wages
on me if they got their Union." ' We accept Wages' version, and find,,
as did the Trial Examiner, that Casady made the remarks substantially
as attributed to him, particularly since at the hearing Wages openly
expressed his hostility to the Union and his preference for the Alli-
ance. Scott, shortly after he was employed as a miner in September
1940, joined the Alliance under circumstances described below. Scott
testified that a few days thereafter, Casady, in reply to a remark made
by the witness that he "couldn't see any benefits to [the Alliance],"
stated :
Well, . . . it will benefit us, . . . we will know right where we
stand, and another thing, '..: it will protect us from the United
Mine Workers from coming down and picketing us. We have had
trouble along that line'before, and this all happened [at] a time
when I needed coal, .. .
Scott favorably impressed the Trial Examiner, who found him to be 'a
credible witness; and since Casady did not deny making the above
statement, we accept Scott's testimony as being in substantial accord
with the facts. . . ,
Shortly prior to August 9, 1940,10 Anderson drove about 53 miles
to the City of Ottumwa and there consulted an attorney, R. G. White:
The latter, who had been recommended to Anderson as an attorney
experienced in the formation of independent unions, suggested that
Anderson bring a committee of the employees to his office on or about
August 9. On the latter date,. Anderson, accompanied by 5, em-
10 This date is fixed on the basis of the date of acknowledgement of the articles of incor-
poration of the Alliance,
CASADY COAL CO. 1251
ployees who had been informally selected by a group of the employees
at' the mine, drove to Ottumwa. One group went in Anderson's car,
and another,in a car owned by Virgil Sundeen, the respondent's mine
foreman or pit boss, and driven by employee Harril Wendland.11
White, ,after listening to suggestions from both the committee and
Anderson, prepared in their presence the documents necessary to the
formation of the Alliance. White testified that at, his own sugges-
tion the Alliance was formed as a non-profit corporation..' The man-
agement of the affairs of the corporation was placed in the hands
of an executive committee which consisted of 3 officers and 3 directors.
The articles of incorporation provided that the officers should hold
office for a year, and the 3 directors for 1, 2, and 3 years, respectively;
and the date of the first election of officers was set for July of the
following year, so that no opportunity for'the membership to select
representatives other than those informally chosen in White's office
would arise within that time. Vacancies on the executive committee
were to be filled by appointment by the committee. The articles pro-
vided for only one regular membership meeting annually, forbade
affiliation with any other organization, and made no provision what-
soever for a grievance committee or other committees.
While White was preparing the articles, the committee selected the
officers who were to serve until the first annual meeting of the Alli-
ance. Anderson testified that he did not participate in the selection
because, being a salesman, he did not consider himself eligible* .12
He never became' a member of the Alliance.
The'articles were recorded on August 20, and a day or two later,
William Hollenbeck, who had been elected president of the Alliance
at the meeting in White's office, notified the employees of a meeting
to be held at the Exline City Hall. At this time the respondent had
in its employ about 30 individuals and a majority of them attended
the meeting. According to the testimony of the respondent's witness
Ralph Wood,13 which we credit, as did the Trial Examiner, the ar-
ticles of incorporation were read to those assembled for their approval
but the employees refused to approve the organization unless it could
get higher wages for them. Thereupon a wage committee was selected
for the purpose of negotiating an agreement with the respondent, and
a vote of approval of the Alliance by the employees was temporarily
abandoned.
"Neither Sundeen nor Wendland testified , and the respondent and the Alliance offered
no explanation for the use of Sundeen's car.
la The articles provided that any person might be admitted as a member of the Alliance
who was "engaged as an employee in the business of mining in Apanoose (county] .. .
who does not , as such employee, manage, or in anyway assist in managing , superintending
or directing the operation of the business of his employer.",
18 Wood had been selected as secretary -treasurer of the Alliance at the meeting in White's
office.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter the committee and Casady met but were unable to agree
on "a wage scale . On August 26, 1940, Casady, at the invitation of the
committee, addressed a meeting at the Exline City Hall attended by a
majority of his employees. After ^ Casady made some coi}cessions,
which represented an increase 'in pay for some , at least, of the classi-'
fications of work performed at the mine, the employees, in 'Casady's
presence,, approved the contract ' by a standing vote. The contract,
which was executed the' following day, contains in part the following :
Agreement between THE INDEPENDENT MINE WORKERS ALLIANCE,
parties of the first part and the CASADY COAL COMPANY of Ex-
line, Iowa, party of the second part.
The parties of the first part and the parties of the second part
agree to go into agreement from September 1, 1940. Either party
may cancel said contract with a Sixty (60) day notice, with a
written notice to either party.-
The parties of the second part do agree not to hire any man that
will not join up with the Independent Mine Workers Alliance
and that will not work with the same and be governed by 'the
Articles of Incorporation of the Order, and will discharge,such
men when asked by parties of the First part .14
Hollenbeck testified, and we find,. as did the Trial Eeaaminer, that
prior to the signing of the contract, the Alliance had no members, with
the possible exception of the six signers of the articles of incorporation.
Subsequent to the execution of the contract, a copy of which the
Alliance posted on the door of the respondent's engine room, Hollen-
beck stationed himself at the entrance to the mine, -and as the em-
ployees, went to work solicited their signatures to a petition which
served the dual purpose of indicating membership in the Alliance and
as authority to the respondent to check off their initiation fees and
dues.15
In, the latter,part of September 1940, the respondent's employees
learned-that the Bituminous Coal Commission had set a . higher selling
price for the respondent's coal and therefore demanded an, increase
?f Although the wording of this contract is somewhat ambiguous it is evident from the
testimony 'of the witnesses that it was intended to operate as a closed -shop contract making
membership in the Alliance a condition of employment not only for new employees but also
for those in the employ of the respondent at the time of its execution
''- Casady had orally agreed with the Alliance to check off the dues of , its members the
first regular check -off was made for the week of September 30, 1940 The amounts checked
off were $ 1 for initiation fees and 50 cents monthly for dues From the amount - collected
the Alliance paid White the sum of $50 for his services - The check -off terminated in the
last week of February 1941 , when the mine temporarily closed down On about March 15,
1941, the Alliance had on hand ' the sum of $209 20 which it divided among its members who
were in the employ of the respondent 'as of the time of the shut-down of March 1, 1941, to
the'extent of1the amount each of then had paid. Whether this included - the initiation fees
is not clear from the record.
CASADY COAL CO. 1253
in their wage rates. ' Casady stated that' he would continue paying
only the contract rate until. he should have received 60 days', notice: of
a desire to change it, and refused to grant the increase . Thereupon
the majority of the employees, acting-independently of the Alliance,
went out on strike and applied for membership in the Union. The
officers of the Alliance did not authorize the walk-out, and Hollenbeck
and 5 or 6 others did not participate in the strike. The strike failed,
and within a week most of the employees returned to work. Before
being permitted to return, however, the strikers' were compelled"to
sign up,again as members of the Alliance by Hollenbeck and other
officers of the alliance who told them that they must do so in order to
,_- ork.
Shortly after the abandonment of the strike, the Alliance gave the
respondent the 60-day notice required by the August 27 contract. On'
November 29, 1940, the respondent and the Alliance entered into a new
contract identical with the old, but providing for a slightly higher
wage scale. ' '
Under all the circumstances set forth above, it is clear that the re-
spondent's employees, in becoming members of the Alliance, did not
have an opportunity to' exercise the free and independent choice'of
representatives contemplated by the Act. Although Anderson, the
prime, instigator of the Alliance, did not perform any supervisory
duties for the respondent, his role as adviser to Casady was well known
to the employees, as was the fact that Anderson had'been an operator
of -coal mines in that area for 'many years, and receiver of the'milie
purchased by Casady. To the employees, therefore, the 'voic'e of An
derson represented Casady's wishes and desires.113 Casady was not
averse to the formation of the Alliance and took no steps to inform
the employees -that Anderson was not acting for the respondent in
setting it up. The testimony of Wages -and Scott, moreover, makes
it clear that Casady himself actively encouraged membership in the
Alliance. Casady's statement to Wages that'the employees "'would
get more money . if we got this union" is particularly significant
because it came at a time shortly after the employees had refused to'join
the Alliance unless it could get higher wages for them. We also con-
sider to be significant, as bearing upon the respondent's domination of
the Alliance, the findings made below that Casady, in order to induce
employees to join the Alliance, prevailed upon the latter in September
1940, to reduce its initiation fees and dues.
'" See International Association of Machinists v. N. L. R. B., 311 U S' 72 (1940), where
the Supreme Court stated :
The employer , however, may be held to have assisted the formation of a union even
though the acts ' of the so-called agents were not expressly authorized or might not be
attributable to him on strict application of the rules of respondent superior ... The
existence of that interference must be determined by careful scrutiny of all the factors,
often subtle , which restrain the employees' choice and for which the employer may
fairly be said to be responsible.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing facts, we find, as did the Trial
Examiner, that the respondent dominated and interfered with the for-
mation and administration of the Alliance and contributed support to
it, and that thereby, and by telling his employees that they would bene-
fit by forming and joining the Alliance, by expressing to Scott his
opposition to the Union, and by entering into agreements with •the
Alliance requiring membership therein as a condition of employment,
the respondent interfered' with, restrained, and coerced his employees
in the exercise of the rights guaranteed in Section 7 of the Act.
B. The discharge ' o f Bailey
Sam E. Bailey was hired as a miner by the respondent on February
13, 1940. Until 1934, when he gave up mining for farming, Bailey
had been a member of the Union, and during this period had served
as a member and as president of his local board, and on several com-
mittees. About a month before he started to work for Casady, Bailey
had applied for membership in the Union, but never completed, his
membership because no local then existed for the respondent's em-
ployees. On March 11, 1940, Bailey was laid off when the mine tem-
porarily closed down. On September 15, 1940, Casady came to Bailey's
house and requested him to return to work. Casady at this time made
no mention of the Alliance. Bailey started to work on September 16,-
and ,on the following day, as the men were gathered about the mine
entrance before work, was asked to join the Alliance by Don McWil-
liams, a member of the Alliance who had taken over the task of signing
up the men during a week when Hollenbeck was absent from work.
Bailey refused. McWilliams testified that immediately after Bailey's
refusal, he [McWilliams] was approached by Sundeen, the mine fore-
man, who asked if any of the men had refused to sign up. McWilliams
reported to Sundeen that "there was one fellow out there refused to
sign," and described to Sundeen which of the men it was.17 Sundeen
thereupon "went out and said he would see . . . about who it was."
McWilliams stated that he did not at this time tell Sundeen that he
wanted Bailey discharged because, although he believed that the Alli-
ance had the right to make such a request, he did not think that he,
.McWilliams, had authority to make it.
On September 19, Bailey, with about a dozen other employees who -
had been hired when the mine reopened, attended a meeting of the
Alliance. Hollenbeck, who presided, read the articles of incorporation
and circulated among the new employees, for their signatures, a state-
ment that they accepted membership in the Alliance. Bailey and a
number of others refused to sign and were asked to leave. Before
17 McWilliams at this time did not know Bailey's name . At the hearing, however, he
identified Bailey as the man who had refused to sign up on this occasion.
CASADY COAL CO. 1255
leaving, Bailey addressed the meeting and expressed his curiosity about
the necessity and expense of having the articles of incorporation drawn
in Ottumwa, and stated that in his opinion the Alliance was a company
union.. Bailey testified and we find that either at the meeting or in
conversations with the other men lie raised the specific objections to
the Alliance that it was incorporated, that it was formed in competition
with the Union, that the contract provided no grievance procedure,
that the officers had too much unchecked power, and that the respond-
ent had displayed his interest in the organization by posting the con-
tract and trying to "force the men in" and by "taking the men over
[to Ottumwa to secure the papers] by the Company's employees" in
Sundeen's and Anderson's cars.
On the following day, Bailey told Foreman Sundeen that he had
attended the Alliance meeting the previous evening and asked him
whether he had to join the Alliance or- quit. According to. Bailey,
Sundeen replied, "It is definitely coming to that," and Bailey stated,
"It just as well be, today as tomorrow." J. W. Scott testified that he
made a similar inquiry of Sundeen, received an affirmative reply, and
told Sundeen that he, too, would quit. Casady testified that Sundeen
told him -
them fellows was going to quit down there and I says, "Well, I
don't want them to quit, we need miners and they are all right for
me, I will go down there and see what the difficulty is."
Casady testified that he thereupon went down in the mine and asked
Scott and Bailey what the trouble was. According to Scott, Casady
spoke to him and Bailey and asked them what they had against the
Alliance, and Scott replied that for one thing the initiation fees were
too high."' Casady then asked, "Would you be interested in staying,
provided we could get it cut down?" Upon Scott's reply that he would
be willing to pay $1 as an initiation fee and 50 cents monthly for dues,
Casady stated, "I will go down and see Mr. Hollenbeck and see what
I can do." A few minutes later Casady returned and told Scott that
he had succeeded in getting the initiation fees cut to $1 and Scott agreed
to join the Alliance.19 All the employees subsequently became mem-
bers of the Alliance, with the exception of Bailey.
Is The initiation fees had been fixed at $3, and the minimum dues at $1 per month.
19 Casady, admitted substantially all of Scott 's testimony in regard to this incident. He
could not remember , however, whether he stated that he would take up the matter with
Hollenbeck or whether he had in fact taken it up with him and reported back to Scott.
Casady admitted , however, that he "might have said something ," to 1 Hollenbeck , and that
the fees were reduced and the "dissatisfaction" cleared up . Hollenbeck denied that Casady
spoke to him about the reduction of the 'fees. Scott 's version of this incident was corrobo-
rated - in full by Bailey The Trial Examiner stated that both Scott and Bailey impressed
him as being highly credible witnesses and he accepted , as do we, the version given by these
witnesses as being in substantial accord with the facts.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
' On-September 23;-Bailey was again solicited to join the Alliance
but refused. • That afternoon, according to Bailey, Sundeen said to
him,,"What the hell is the matter with you you won't sign with the
i'est''of these men ?" Bailey, however, remained adamant in his re-
fusal' to sign; whereupon Sundeen stated, "I don't think we are going
to let you sign 'it now, anyway." That-evening, according to Scott;
Sundeen told him that he "guessed they was going to let Sam [Bailey]
go; that he had a tendency to cause' trouble" about- the Alliance. - On
the following morning, September 24, Sundeen, discharged Bailey, and
according to the latter used the following words, "I think you'are pretty
well dissatisfied here. You better square up and'ta'ke your tools out."
We credit the testimony of both Bailey and Scott', as did the Trial
Examiner.
The complaint alleged that'Bailey was discharged becausehe refused
and failed to join the Alliance. In his answer, the respondent alleged-
that "Bailey was discharged'by reason of his inferior work, the fact
that he did not keep his place clean; the fact that he did not remain
in his place by traveling about the place, interfering with- the work
of other employees and endangering their lives." Except for the testi-
mony of Elvin La Rue, an employee in the mine, that on one occasion
he saw Sundeen placing props in Bailey's working place, work that
he claimed Bailey normally should have performed, the respondent
failed to adduce specific testimony in support of the allegations in his
answer. Sundeen was not called by the respondent to testify at the
hearing." Casady testified that prior, to Bailey's discharge he had
received no criticism, of his work, and that Sundeen had not informed
him of his intention to discharge Bailey, but had told him that Bailey
had refused to join the Alliance. According to Casady, after
Bailey was discharged Sundeen informed him that it was because
Bailey "wouldn't mine his place out and take care of it." Bailey testi-
fied without contradiction, however, that no reason was given to him as
the cause of his discharge at the time except that he seemed 'to be
",dissatisfied." We, as did the Trial Examiner, credit Bailey's testi-
mony that his work was never criticized, either while he was working,
for the respondent in February and March, or 'in September 1940, that,
he did not do inferior work, that he kept his working place clean, and
that he did not interfere with the_ work of other employees. The
testimony of both Bailey, and Scott clearly indicates the real reason for
B'ailey's discharge. We find, as did the Trial Examiner, that Bailey
was discharged because he refused to join the Alliance and not for
the reasons advanced by the respondent.
20 In eiplaining his absence , Casady testified that he "supposed" the Board might subpoena
him, and if it did not, since Sundeen was now living in Illinois ,' it would be "quite an
expense to me to get him down here ." The respondent made no request that Sundeen's
testimony be taken by deposition.
CASADY COAL CO. 1257
r
Since we have found that the Alliance was a labor organization
which had been established and assisted by the respondent 's unfair labor
practices , the closed-shop contract of August 27, 1940 , does not fall
within the proviso of Section 8 (3) of the Act and cannot operate as
a defense to the discriminatory discharge of Bailey 21
We find that by discharging Bailey the respondent discriminated in
regard to his hire and tenure of employment , thereby encouraging
membership in the Alliance and discouraging membership in the
Union . We further find that thereby, by seeking, through Sundeen,
to learn the union affiliation of his employees and by attempting to
persuade them to join the Alliance, the respondent interfered with,
restrained , and coerced his employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the 'respondent has engaged in certain unfair
labor practices, we shall order him to cease and desist therefrom and to
take certain affirmative action in order to effectuate the policies of
the Act.
We have found that the respondent dominated and interfered with
the formation and administration of the Alliance, and contributed
support to it. It is clear, and we find, that the Alliance is incapable
of serving as a bona fide representative of the respondent's employees
for the purposes of collective bargaining, and that the effects and con-
sequences of the respondent's domination of, interference with, and
support of the Alliance, as well as the continued recognition by the
respondent of the Alliance as the bargaining representative for his
employees; constitute continuing obstacles to the free exercise by the
employees of their right to self-organization and to bargain collectively
through representatives of their own choosing. Accordingly, we shall
order the respondent to withdraw all recognition from and completely
=The 'proviso states :
That nothing in this Act .. . shall preclude an employer from making an agreement
with a labor organization (not established, maintained or assisted by any action defined
in this Act as an unfair labor practice) to require, as a condition of employment,
membership therein, if such labor organization is the representative of the employees as
provided in Section 9 (a), in the appropriate bargaining unit covered by such agreement
when made.
J
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disestablish the Alliance as the representative of any of his 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.22
The respondent,-by the agreements of August 27, 1940;- and Novem-
ber 29, 1940, in effect recognized the Alliance`as the exclusive bargain-
ing representative of his employees, and forced the latter to become and
remain members of the Alliance. Since, under all the circumstances,
any continuation, renewal, or modification of said agreements would
perpetuate the conditions which deprive the employees of their rights
guaranteed by the Act, we shall order the respondent to cease giving
effect to any contracts existing between him and the Alliance, and to
any modifications or extensions thereof.' Nothing in this Decision and
Order, however, shall be taken to require the respondent to vary those
wage, hour, and other substantive features of his relations with the
employees themselves, if any, which the respondent established in
performance of the contracts as extended, renewed, modified, supple-
mented, or superseded.
Because of the respondent's unlawful conduct and its underlying
purpose and tendency, we are convinced that the unfair labor prac-
tices found are persuasively related to the other unfair labor practices
proscribed and that danger of their commission in the future is to be
anticipated from the course of the respondent's conduct in the past.23
The preventive, purpose of the Act will be thwarted unless our, order
is coextensive with the threat. In order therefore to make effective the
-interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and thereby to minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of-
the Act, we must order the respondent to cease and desist from in
any manner infringing the rights guaranteed in Section 7 of the Act.
We shall also order the respondent to take certain affirmative action
designed to effectuate the policies of the Act. -
We are of the opinion that, under the circumstances of this case,
the respondent should be ordered, as a means of restoring the status
quo and remedying the unfair labor practices found, to reimburse each
employee for the amount of initiation fees and dues which the re-
spondent checked off his wages and paid over to the Alliance, less
any amount already returned to him by the Alliance.24 As we have
found, the,respondent was responsible for the creation of the Alliance
a See N. L. R. B v. Newport News Shipbuilding and Dry Dock Company, 308 U. S. 241;
N. L. R B v. The Falk Corporation, 308 U . S 453; N L R. B . V. Pennsylvania Greyhound
Lines, 303 U. S. 261. '
za See National Labor Relations Board V. Express Publishing Co , 312 U. S. 426.
u As stated above, the Alliance returned to employees' as of March 1, 1941 , at last some
of the money so checked off.
CASADY • COAL CO. 1259
and interfered with, dominated, and supported it. By the closed-shop,
agreement 's with the Alliance, which we have found illegal since they
were made with a company-dominated organization, the respondent
unlawfully compelled his employees, on pain of discharge, to maintain
membership in the Alliance. The check-off of fees and dues was no
less an imposition, closely related to and in fact an inseparable con-
comitant of the closed-shop requirement. - The only "authorization"
given by the employees was an ambiguous instrument; signed at Hol-
lenbeck's insistence that it.was necessary to do so in order to work,
which on its face was not authority for making the deductions.25
Thus 'without specific orwritten authority from the employees, and
despite knowledge that at least some of the employees opposed paying
part of their wages to the Alliance'26 Casady-readily agreed to make
the deductions at Hollenbeck' s oral request. Even after the em-
ployees had attempted to repudiate the Alliance by striking without
its sanction , the respondent, upon termination of the strike, renewed
the closed-shop and again instituted the check-off, without specific or
written authority, as a condition of employment.
It is plain, we think, that the moneys deducted from the employees'
wages on behalf of the Alliance in no sense constituted voluntary
payments by the employees. Instead, the deductions were a form of
tribute exacted from-the employees as the involuntary price of re-
taining their jobs and as a means of supporting and maintaining the
organization foisted upon them by the respondent. In these circum-
stances, we find that the purposes and policies of the Act will be
effectuated by requiring the respondent to reimburse his employees
for the moneys so deducted, and we 'shall so order.27
We have found that the respondent terminated the employment of
Sam L. Bailey because of his refusal to join the Alliance. We shall,
therefore, order the respondent to offer him immediate and full rein-
statement to his former or substantially equivalent employment, and
to make hini whole for any loss of earnings he may have suffered by
reason of the respondent's discrimination against him, by payment to
him of a sum equal to the amount which • he would normally have
26 The statements signed by the employees merely quoted the follo'aing portion of the
Articles of Incorporation of the Alliance :
"The initial membership fee of this corporation shall not be less than $3 , nor more
than $10 The amount of the fee at any time to be fixed by the By Laws The dues
and assessments may be charged or levied against members of this corporation shall
be determined by the Executive Committee , but in no event shall they be less than
$1 per month , and not more than $4 per month in any one month " -
,16 When Scott and Bailey rebelled at the exaction , Casady ' s only concession was to effect
a reduction in the Alliance 's initiation fee. Scott thereupon joined rather than lose his
employment However , Bailey , who remained steadfast in his refusal , was discharged.
21 Cf. Kansas City Power & Light Co. v. N. L. R. B., 111 P. (2d) 340 (C. C A 8), enf'g
as mod. Matter of Kansas City Power & Light Company and International Brotherhood of
Electrical Workers, Local Union B-412 (reh . den May 21 , 1940).
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earned as wages from the date of his discharge- to the 'date of offer
of reinstatement, less his net earnings 28 during said period.
Upon the basis of the foregoing findings of fact and upon the
entire record in this case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America, District 13, Subdistrict 1,
and The Independent Mine Workers Alliance, are labor organizations
within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of The Independent Mine Workers Alliance, and by con-
tributing support to it, the respondent has engaged and is engaging
in unfair labor practices, within the meaning of Section 8 (2) of
the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Sam L. Bailey, thereby encouraging membership in The
Independent.Mine Workers Alliance and discouraging membership in
United Mine Workers of America, District 13, Subdistrict 1, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing his employees in
the exercise of the rights guaranteed in 'Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact, conclusions of law,
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 respondent, A. L. Casady, doing busi-
ness as Casady Coal Co., Exline, Iowa, and his agents, successors, and
assigns, shall:
1. Cease and desist from : -
(a) In any manner dominating or interfering with the adminis-
tration of The, Independent Mine Workers Alliance, or with the
28 By "net earnings" is meant earnings less expenses , such as for transportation, room
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but,for his unlawful
discharge and the consequent necessity of his . seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440 . Monies received for
work performed upon Federal , State, county , municipal , or other work-relief projects shall be
considered as earnings. See Republic Steel Corporation v. N. L R. B. 311 U. S. 7.
CASADY COAL CO. 1261
formation or administration of any other labor organization of his
employees , and from contributing financial or other support to The
Independent Mine Workers Alliance, or to any other labor organiza-
tion of his employees;
(b) Recognizing The Independent Mine Workers Alliance, as the
representative of any of his employees for the purpose of dealing with
the respondent concerning grievances , labor disputes , wages, rates of
pay, hours of employment , or any other conditions of employment;
(c) Giving effect to the agreements of August 27, 1940, or Novem-
ber 29, 1940 , with The Independent Mine Workers Alliance , or to any
extension , renewal , modification , or supplement thereof, or to any
other agreement with The Independent Mine Workers Alliance which
may be in effect now or in the future;
(d) Encouraging membership in -The Independent Mine Workers
Alliance, or any other labor organization of his employees , or dis-
couraging membership in the United Mine Workers of America, Dis-
trict 13, Subdistrict 1, or any other labor organization of his em-
ployees, by discriminating in regard to hire or tenure of employment
or any term or condition of employment;
(e) In any other manner interfering with, restraining , or coercing
his employees in the exercise of the right to self -organization , to form,
join, or assist labor organizations , to bargain collectively through rep-
resentatives of their own choosing , or to engage in concerted activities
for the purposes of collective bargaining and other mutual aid or pro-
tection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish The
Independent Mine Workers Alliance as the representative of any of
his employees for the purpose of dealing with the respondent concern-
ing grievances , labor disputes , rates of pay , wages, hours of employ-
ment, or other conditions of employment;
(b) Reimburse all his employees whose initiation fees and dues in
the Alliance were checked off for the amounts thus deducted from
their wages, in the manner set forth in the section entitled "The
remedy" above;
(c) Offer to Sam L . Bailey immediate and full reinstatement to
his former or substantially equivalent position , without prejudice to
his seniority and other rights and privileges ;
(d) Make whole Sam L . Bailey for any loss of earnings he may
have suffered by reason of the respondent's discrimination against
him, by payment to him of a sum of money equal to that which he
normally would have earned as wages from the date of the respond-
ent's discrimination against him to the date of the respondent 's offer .
of reinstatement , less his net earnings during said period;
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post immediately in conspicuous places in and about his mine
at Exline , Iowa, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to his employees
stating : ( 1) that the respondent will not engage in the conduct from
which he is ordered to cease and desist in paragraphs 1 (a), (b), *(c),
(d), and ( e) of this Order; ( 2) that the respondent will take the affirm=
ative action set forth in paragraphs 2 (a), (b), (c ), and (d ) of this
Order; and ( 3) that his employees are free to become or remain
members of United Mine Workers of America, District 13, Subdistrict
1, and that the respondent will not discriminate against any employee
because of his membership or activity in that organization;
(f) Notify the Regional ' Director for the Eighteenth Region in
writing, within ten (10 ) days from the date of this Order, what steps
the respondent has taken to comply herewith.
I