Clover Fork Coal Co.

National Labor Relations Board - Board Decisions

Nov 27, 1937

4 N.L.R.B. 202 (N.L.R.B. 1937)

In the Matter of CLOVER FORK -COAL COMPANY and DISTRICT 19,
UNITED MINE WORKERS O>H" AMERICA
Case No. C-213-Decided November 27, 1937
Coal Mining Industry-Interference , Restraint , or Coercion : employment of
labor spies; membership and participation in association of employers engaged
in labor practices declared unfair by the Act; intimidation of union leaders
and organizers ; attempts by terrorism to force union organizers to leave town ;
violence ; interference with and surveillance of union meetings ; expressed op-
position to labor organization ; threats of retaliatory action ; threat to close
plant unless organization cease ; misrepresenting terms and purposes of the
Act to employees ; expressing to employees approval of anti-union statements
or activities ; questioning employees regarding union affiliation and activity ;
efforts to secure disclosure of identity of union members from union organizer ;
circulating anti-union petition in plant ; attempts to induce resignation from
employment of union members ; engendering fear of loss of employment for
union membership and activity ; shut -down of plant-Ihscrimisation: dis-
charge ; charges of, not sustained as to certain employees-Reinstatement
Ordered-Back Pay: awarded.
Mr. Leonard S. Shore and Mr. Charles M. Ryan, for the Board_
Mr. Cleon K. Calvert, of Pineville, Ky., for the respondent.
Mr. James S. Golden and Mr. W. R. Lay, of Pineville, Ky., for
the Union.
Mr. Martin Kurasch, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by William Turnblazer, president of Dis-
trict 19, United Mine Workers of America, herein called the Union,
the National Labor Relations Board, herein called the Board, by
Philip G. Phillips, Regional Director for the Ninth Region (Cin-
cinnati, Ohio), issued its complaint, dated July 24, 1937, against the
Clover Fork Coal Company, Kitts, Harlan County, Kentucky, herein
called the respondent. The complaint and notice of hearing thereon
were duly served upon the respondent and the Union.
The complaint alleged 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),
202
DECISIONS AND ORDERS 203
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act.
On July 28, 1937, respondent filed its answer to the complaint
denying that its operations affect interstate commerce within the
meaning of the Act and that it had engaged in or was engaging in
the alleged unfair labor practices. -
Pursuant to the notice, a hearing was held in Harlan, Kentucky,
from August 2 to August 12, 1937, inclusive, before Irving G. Mc-
Cann, the Trial Examiner duly designated by the Board. The
Board, the respondent, and the Union were represented by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to produce evidence bear-
ing upon the issues was afforded to all parties.
At the opening of the hearing, counsel for the Board moved to
amend the complaint to include the names of twelve additional men
who were allegedly discharged by the respondent in violation of the
Act. The respondent agreed to this amendment to the complaint,
and it was agreed by the parties that the respondent might traverse
the amended complaint of record, without filing a formal answer.
A list of additional names thus added to the complaint was given to
the respondent during the hearing. During the course of the hear-
ing, the Trial Examiner, upon motion of counsel for the respondent,
ordered a portion of paragraph 10 of the complaint to be stricken.
At the close of the Board's case,. attorney for the Board made a
formal motion that the complaint be conformed to the proof that
had been adduced. This motion was denied by the Trial Examiner.
The Board hereby reverses that ruling and orders that the complaint
be conformed to the proof adduced during the hearing. During the
course of the hearing, the Trial Examiner made several rulings on
objections to the admission of evidence. The Board has reviewed
these rulings, and the rulings made with respect to other motions
made by the parties, and finds that no prejudicial errors were com-
mitted. These rulings are hereby affirmed.
On August 18, 1937, the Board, acting pursuant to Article II,
Section 37, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered this proceeding to be trans-
ferred to and continued before it.
On August 30, 1937, the respondent moved for leave to introduce
into evidence the testimony of Roscoe Petrie, John Fagg and Ed
Whitfield. On September 11, 1937, the Board issued an order deny-
ing the motion for leave to introduce further proof.
Upon the entire record in the case, the Board makes the following :
204 NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a Kentucky corporation, is engaged in the mining
of coal in Kitts, Harlan County, Kentucky. The stockholders of the
respondent are A. F. Whitfield and his wife, and his four sons and
five daughters. The sons, A. F. Whitfield, Jr., sometimes called
"Buster" Whitfield, secretary-treasurer of the respondent, J. George
Whitfield, general superintendent of the Kitts mine, Ed Whitfield,
and Thomas Whitfield, sometimes called "Jack", manage and operate
the mine.
The respondent owns about 2,000 acres of land in fee, in Kitts,
Kentucky, of which about 1,250 acres are coal land. It owns the
coal mine and mine equipment, the tipple, which separates the dif-
ferent sizes of coal, about 170 houses which it rents to its employees,
and a commissary which is worth about $7,000 and which the respond-
ent operates for profit.
The respondent mines about 300,000 tons of coal a year. It was
stipulated by the parties that the shipments made during the month
of June 1937, are a fair sample of the shipments made in each of the
other months during the period from July 5, 1933, to July 1937, and
"that this month of June may be taken in evidence and used the same
as if each of the other months had been introduced and are like and
similar to the month of June.". It was further stipulated that of
the total of 482 coal cars carrying approximately 50 tons per car
that were shipped by the respondent on the Louisville and Nashville
Railroad, 398 cars carried coal to Michigan, Indiana, Ohio, Ten-
nessee, Georgia, North Carolina, South Carolina, Alabama, Minne-
sota, and Illinois; 54 of the remaining 84 cars carrying coal were
used by the Louisville and Nashville Railroad for the fueling of its
equipment. Coal cars from the Baltimore and Ohio Railroad Com-
pany, the Chesapeake & Ohio Railroad Company, the Cleveland,
Cincinnati, Chicago and St. Louis Railway Company, the Pennsyl-
vania Railroad Company and the Southern Railroad Company, all
of which are interstate railroads that connect with the Louisville and
Nashville Railroad, were used in the shipment of coal mined by the
respondent. In the Harlan area, four or five times as many railroad
employees are engaged in handling coal and other merchandise as
are engaged in the passenger service. The major portion of freight
shipped out consists of coal.
The respondent's siding can hold about 48 cars. A day's run at the
mine is about 32 to 35 cars of coal. Thus the coal mined by the
respondent must move quickly into the channels of interstate
commerce.
DECISIONS AND ORDERS 205•
The respondent contends that its dealings with Walter Bledsoe
and Co., a national coal sales company, removes the respondent from
the scope of the federal jurisdiction over interstate commerce.
Walter Bledsoe and Co. has its principal office at Terre Haute,
Indiana, and maintains sub-offices throughout the country. The
respondent deals with the Cincinnati office, and respondent has
entered into an unwritten arrangement with Walter Bledsoe and Co.
whereby the latter is given the right to the exclusive sale of the
coal mined by the respondent. Walter Bledsoe and Co. sends instruc-
tions by mail and telephone, and the respondent's office fills out the'
shipping orders, in which the respondent is named as consignor.
The respondent frequently knows where coal is to be shipped before
it is mined. - Bledsoe and Co. pays the respondent by its own check,.
once a month, the market price of the coal that has been shipped,
less eight per cent. It is clear that this arrangement between the-
respondent and Walter Bledsoe and Co. in no way affects the fact
that the major portion of the coal mined by the respondent is sent
immediately into interstate commerce.
Fred Berquist, who qualified as an expert on the coal industry,
testified that labor is the flexible and principal item in coal production
costs, and that wages represent anywhere from 45 per cent to 70 per-
cent of the total production cost, and that an overall average for this
item would be 60 per cent. Since all coal in the Appalachian area is
competitive,' labor productivity is an important factor in the de-
velopment of a coal area, and in the competitive position of various
areas and mines. Prior to 1922, the coal area south of the Ohio River,
embracing Kentucky, West Virginia, and Virginia contributed 30 per
cent of the volume of coal mined in the seven states in the Appalachian
area, Pennsylvania, Ohio, Illinois, Indiana, Kentucky, Virginia, and
West Virginia. In 1922, there was a sharp rise in this percentage
because of a strike which occurred in the northern group of states,.
consisting of Ohio, Illinois, Indiana, and Pennsylvania. In 1924-
an agreement, known as the Jacksonville Wage Agreement, was.
reached between the coal operators in this northern group of states
and their employees, which established a $7.50 basic day rate for the
mines in the northern group. The coal fields in the southern group
were not unionized and were covered by no contract. The relative,
production of the southern group increased, while the relative produc-
tion of the northern group, unable to hold its own in the competi-
tive struggle, decreased. In 1927, there was great difficulty in renew-
ing the Jacksonville Wage Agreement. Western Pennsylvania be-
1 In Appalachian Coals, Inc. v. U. S., 288 U. S. 344 (1933), the Supreme Court pointed'
out, at p. 368 , that "While strikes and interruptions of transportation may create tempo-
rary and abnormal dislocations , the bituminous coal industry under normal conditions.
affords most exceptional competitive opportunities."
206 NATIONAL LABOR RELATIONS BOARD
came a non-union area. The Agreement was renewed in Illinois, at
the then current rate, until 1928. Then it was renewed again, with
a $6.10 rate , and again with a $5.00 day rate. Another instance of
the effect of the competition of one area upon conditions in another
was given by William Turnblazer , president of District No. 19, of the
United Mine Workers, who testified that a strike occurred in 1935
when the Southern Appalachian Coal Operators Association refused
to renew a contract with the Union, claiming that it could not meet
Harlan competition.
Thus, any interference in the production of coal in any one of the
-principal areas, such as is occasioned by higher labor costs, strikes,
or other obstruction , has the effect of shifting the production of coal
from one or more states to others and of changing the demands on
the pre-existing channels of distribution . It also materially affects
the financial status of the coal -carrying railroads involved.
Invoices for purchases of mine equipment show that many pur-
^chases were made for the Kentucky Mine Supply Company of Har-
lan which purchases equipment from all over the United States. A. F.
Whitfield, Jr. is president of the Kentucky Mine Supply Company,
and his father also has an interest in the Company . The fact that
this mine equipment is purchased in interstate commerce cannot be
obscured by the interposition of the Kentucky Mine Supply Com-
pany, especially in view of the identity of interest between it and
the respondent . Invoices for purchases of supplies for the operation
of the mine show that some purchases were made directly from Illi-
nois and Ohio, and during the year preceding the hearing, the re-
spondent purchased 300 mine cars at $200 each in Tennessee . Motors
are bought in Ohio. Other mining machinery, including locomotives,
pumps, and fans are bought outside of Kentucky . The tipple, pur-
chased in Chicago, cost the respondent $70,000.
The supplies for the commissary consist mainly of groceries, no-
tions, and dry goods. A book of invoices shows that, during July
1936, the commissary purchased eggs and chickens from Tennes-
see, hardware from Tennessee , shoes from Virginia, clothes from
Indiana and Ohio, meat from Illinois and Virginia , groceries from
West Virginia, and coffee from Tennessee . This month may be taken
as fairly typical of other months.
II. THE UNION
United Mine Workers of America, affiliated with the Committee
-for Industrial Organization , is a labor organization which admits
to membership employees working in the mining industry.
District 19, covers the whole State of Tennessee and five counties,
including Harlan County , in southeastern Kentucky.
DECISIONS AND ORDERS
'III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. The Association
207
The Harlan County Coal Operators' Association, herein called the
Association, was organized in 1916. It is not incorporated. All
corporations, firms, and individuals engaged in mining coal in Har--
lan County, Kentucky, are eligible to active membership. The by-
laws of the Association state, as one of its objects :
The establishment and maintenance of cordial and peaceful
relations between the employer and employee, but resisting with
all it's (sic) power and influence all movements to force the coal'
operators to recognize or adopt the so-called "closed shop" pol-
icy or practices.
The evidence in the record clearly indicates that one of the major
functions of the Association is to exert the combined power of the coal
operators of Harlan County against the organization of the mine
employees, and to interfere with, restrain and coerce the workers
in the mines of Harlan County in the exercise of their right to.
self-organization, and to form, join and assist United Mine Workers
of America.
Coincident with the beginning of United Mine Workers' organ-
izational drive in January 1937, the dues for the Association's mem-
bers were raised from one-half cent per ton to one cent per ton of
coal mined.
Ben Unthank, who had been a deputy sheriff in Harlan County
under every sheriff since 1921, was hired by the Association as "de-
tective field man". In January and February 1937, Unthank had-
from 12 to 15 men working for him. He testified that he understood
that United Mine Workers were putting on an organization drive'
beginning in January 1937, and that he increased his force of deputy
detectives because of it. Some of his men got jobs in the mines.
.and derived information about union activities there. Others were
engaged to spy upon Dwyer, Silas, Burgess, Garland, and A. T.
Pace, organizers for the United Mine Workers. These men and others
made weekly reports to Unthank on the Union activities of the em-
ployees and the activities of the Union organizers. Unthank reported
back to George Ward, who had been secretary of the Association since
October or November 1931.
Unthank testified that he did not know the names of his subordi-
nates, that he 'knew them only by number. He stated that they
were sent to him by a Mr. Hayward of Cincinnati, whose address`
he could not recall. Unthank denied that George Lee, Lee Fleenor,
Wash Irving, or Hugh Taylor, all identified as persons engaged in
208 NATIONAL LABOR RELATIONS BOARD
anti-union activity, were among those working for him. The Trial
Examiner stated that it was obvious that Unthank was not telling
the truth, and it is clear from the record of his testimony that Un-
thank is not a trustworthy witness. These men did accompany
Unthank in his various anti-union activities and did, together with
Unthank, harass Union organizers. Unthank was a special deputy,
appointed by High Sheriff Theodore Middleton, and these men were
•deputies. The connection between these men and Unthank is clear.
Unthank was paid $150 per month by the Association. In late
January, he received from the Association $1,252 for expenses. Part
of this amount was used for the protection of coal in cars which had
been stalled by the Ohio floods. By far the greater part, however,
was used to keep a check on the Union organizers and to engage in
-other anti-union activities. In February 1937, an additional $1000
was given to Unthank for "expenses". This was also used to help
keep watch on the organizers. Unthank testified that the monthly
pay roll for January, February, March, and April, 1937, was about
$1000.
Unthank left Harlan County in March. He testified that he went
to Florida and various other parts of the country for a vacation. He
admitted that, during the last part of his vacation, he knew that
the Senate Committee investigating Civil Liberties was attempting
to subpoena him to testify at Washington in connection with the
Committee's investigation of Harlan County.
Several specific incidents were testified to, which serve to illus-
trate the work of Unthank and his subordinates in Harlan County.
On July 20, 1935, A. T. Pace, an international representative of
the United Mine Workers, was driving into Harlan County from
Bell County, together with two other international representatives
and a hitch hiker. Pace was, at that time, engaged in setting up
Union headquarters in Harlan. He had rented a building and had
purchased some furniture. When Pace had driven about three miles
into Harlan County, he was stopped by Unthank, George Lee, Frank
White, and Lee Bowling. They were armed with a high-powered
rifle, a sawed-off shotgun and another small weapon of some kind.
Pace and his fellow organizers were then forced to turn around and
leave Harlan County.
On January 7, 1937, James Bates, district organizer of District 19,
United Mine Workers, George Burchett, his associate, and George
Titler, an international representative of United Mine Workers,
drove to the Bell County Country Club to contact some men. Lee
Fleenor, George Lee, and Unthank then drove up. By keeping their
hands on their guns and by pointed use of foul language, Unthank
.and his companions clearly indicated that the Union representatives
DECISIONS AND ORDERS 209
were to turn back and stay out of Harlan County. The Union men
did so.
On January 19, 1937, Titler was rooming at the New Harlan Hotel
with L. T. Arnett, vice-president of District 19. Bowling, Fleenor,
and White began to hang around the hotel as soon as Titler took
quarters there. At 2 A. M. Titler found tear gas coming from under
his door and roused the hotel. The guests were forced to scramble
out of the building, choking. Titler remained inside until morning
because he had been instructed not to venture out after dark. The
next day, Titler' and Arnett were told to leave the hotel as the man-
agement feared for the safety of their guests. Since people in Harlan
were afraid to be seen talking to a labor organizer, they were unable
to find quarters anywhere else in Harlan and were forced to go-to
Pineville.
Marshall A. Musick, a Baptist minister who is a field representa-
tive and organizer for United Mine Workers, •has experienced many
attempts at intimidation and has been falsely arrested and threat-
ened. In June 1934, he was arrested by Unthank, White, and Lee,
while he was on 'his way to preach at the funeral of a Union man.
After he had been prevented from attending the funeral, he was
released on bail. Subsequently, the proceedings against him were
dropped. From the day he began his organization campaign in
January 1937, he was followed by one to three carloads of deputy
sheriffs, including Eldridge, Taylor, and Unthank. He was threat-
ened by the deputies with shooting, arrest, and expulsion from the
camp. One Sunday in January while he was on a highway waiting
with his wife for a bus, several carloads of deputies drove up and
opened fire. He recognized Taylor and Eldridge in the cars.
On February 9, 1937, Musick was warned by friends that he had
better leave town. He did so, after leaving his 19-year old son
Bennett, in charge of his house. That evening, the Musick house
was fired upon and Bennett was killed.
On June 17, 1937, Alonzo Tally, a colored field worker and
organizer for United Mine Workers, was going to a place in Kitts
called Golden Ash, for a union meeting. As he started to cross the
bridge, which is at the county line, two carloads of deputies came
up. The deputies, including Bowling, Fleenor and Lee, prevented
him from crossing the bridge.
At all times, Union organizers were harassed and threatened by' a
display of arms. Deputies also attended Union meetings, and by
blowing their automobile horns, made it difficult or impossible for
Union speakers to be heard.
The respondent contends that it is no longer a member of the
Association and therefore no longer responsible for the actions of
210 NATIONAL LABOR RELATIONS BOARD
the Association. It asserts that in May 1934 its representatives
walked out of a meeting of the Association after a disagreement
on policy, and that it formally resigned from the Association by a
letter dated May 19, 1934. The ledger of the Association, on a sheet
devoted to the Clover Fork Coal Company, contains the notation:
"Resigned May 19, 1934." This is written in ink of a color different
from the ink used for the notations made in the ledger for that
period, but identical with the color of the ink used for many nota-
tions made during and subsequent to February and March 1937.
George Ward, secretary of the Association, at first testified that he
was sure that the "resigned" notation was not made in recent months
and that it was in the ledger at the time it was turned over to the
Senate Civil Liberties Committee. Near the end of the hearing,
however, he changed his testimony and stated that he had made the
notation in the latter part of May 1937. His testimony as to the
relation of the respondent to the Association was evasive, untrust-
worthy, and-unsatisfactory. Although the Whitfields testified that
they did not attend meetings of the Association and in no way at-
tempted to influence the policy of the Association, after their
resignation in May 1934, it appears that during 1936, A. F. Whit-
field, Jr. was elected to the Executive Board of the Association, and
his name appeared on the letterhead of the Association subsequent
to November 1936. Ward and A. F. Whitfield, Jr. testified that
A. F. Whitfield, Jr. had never accepted the position. Ward stated
that Whitfield was elected in an effort to induce the Clover Fork
Company to reenter the Association. Little credence can be given
to this contention.
In his early testimony George Ward stated that the Association
spent about $350 per month in safety work in the mines. J. S.
Bryson, who has been the safety director for about five years,
receives $300 per month. When Ward was recalled to the stand
later in the hearing, he stated the $350 figure was only for Bryson's
salary and personal expenses. He was unable to give any more com-
plete account. He stated that the expenses of the safety department
might depend upon any disaster that occurred, but he could name no
instance in the past where extraordinary expenses had been incurred.
Bryson, the safety director, was also vague. He talked of having
spent "an enormous amount of money I did not keep track of delving
into various things." He spoke of possible expenses in "any disaster
where I have got to supply chemicals and everything it may run one
from $500.00 to $2.000.00"; yet he did not mention one instance in
his nine years with the Association in which he had had any extraor-
dinary expense. The only equipment of the safety department that
was mentioned was a respirator.
DECISIONS AND ORDERS 211
The respondent does not appear to have made ^ any payments to
the Association from May 1934 to November 1935. From the latter
,late, the respondent contributed at the same rate as other members.
The respondent asserts that it is contributing merely for the safety
services of the Association. All contributions which the Association
receives, however, are placed in the general fund. All payments
for salaries and expenses that were made to Ben Unthank were made
from this general fund.
The Association, by its activities, is engaging in labor practices
-declared unfair by the National Labor Relations Act. The pur-
pose of the Association is clearly to interfere with, restrain and
otherwise hinder union organization •in Harlan County. It is clear
also that the respondent, admittedly a former member, was fully
aware of this purpose. When the dues were increased in January
1937, from one-half cent per ton to one cent per ton, the respondent's
contributions were also increased. The contributions of the respond-
ent averaged about $275 a month during the first six months of 1937;
t sum close to the total expenses of the Association's safety depart-
ment, which have been shown to amount to about $350 a month.
From all the evidence it is clear that the respondent must be held
responsible for the anti-union activities of the Association, and that
the illegal acts of the Association are, in effect, the acts of the
respondent.
2. The activities of the respondent
The contributions of the Association were not the only method
by which the respondent put into practice its admitted anti-union
bias. The officers and agents of the respondent engaged in a course
of activity designed to stifle Union organization and to eradicate
whatever progress the Union had achieved.
Roscoe Petrie, the mine foreman, asked prospective employees of
the respondent if they belonged or had ever belonged to a union.
The respondent frequently expressed to the men its opinion of
unions. Roscoe Petrie stated to the employees that there were many
denominations of churches and many organizations that they could
belong to, but that the respondent would not have anything to do
with United Mine Workers. Ed Whitfield made a speech to the,
men in which he - stated 'that he would close down the mine before
he would allow Union men to work in it. In a speech before the
camp, where the colored miners live, he pointed out that the re-
spondent had been good to the men. He then told the men that he
had money enough to live on for ten years and, that he would close
the mine for that period, and deprive the men of their jobs if they
followed the Union organizers. On one occasion he told the men
that the "Wagner Labor Relations Act was just a bluff".
212 NATIONAL LABOR RELATIONS BOARD
Several attempts were made by the respondent to incite its em-
ployees against Union organizers. On one occasion George Whit-
field said, "if one of my men will pick up a stick and whip hell out
of one of them organizers, I will go to Judge Gilbert and see he
don't put in a day in jail and I will pay the fine". On another
occasion George told the men that when the Union organizers came
into the camp, he would order a special "man-trip" out of the mine,
that he would appreciate it if the men went to the meeting, and
that he could not help it if they ran the organizers off or baptized
them in the river. Ed Whitfield also urged the men to beat the
organizers and to drive them out.
Attempts were made by the respondent to induce the employees to
reveal the Union activities of their fellows. John Fagg, the assistant
mine foreman, told Clarence Lloyd, an employee, that it would bene-
fit them both if Lloyd would report what he heard about the Union
and which men had joined. Roscoe Petrie continually asked one of
the men who lived near the Union hall which of the employees he
had seen going to or coming from the hall.
On June 15, 1937, Alonzo Tally and Taylor Miller, union organiz-
ers, conducted a Union "pep meeting" at the cross roads at Kitts_
George, Jack, and Ed Whitfield, Roscoe Petrie, Dan Killion, a mine
guard, and Charlie Anderson, a man who was described by Union
men as one who does not do much work at the mine, carries a gun,
and gets company scrip whether or not he has earned it, came up
and stood around at the meeting. Ed Whitfield, at one point, said,
"Tally, you can't speak to my men". Tally continued speaking, how-
ever. When he stated that 85 per cent of the men at Kitts had
joined the Union, one of the Whitfields called him a liar. Tally
then agreed to show the Whitfields the list of Union men, if they
promised not to discharge anyone; if there were not 85 per cent,
Tally was to admit that he was a liar, and if there were, the Whit-
fields were not to fire anyone. It is not clear whether Tally did
furnish a list of names, or merely stated to the respondent at its
offices that 191 men were signed up. At any rate Jack Whitfield
testified that he called George Titler three times on the phone in an
attempt to have the Union cards shown to him as proof of the 85
per cent, and then took Tally with him to the town of Evarts in an
attempt to get these cards. The eagerness to see the Union cards
adds credence to the testimony that the respondent was at this time
engaged in a program of discharging Union men. Jack Whitfield
testified that he had promised not to fire any of the men if proof of
the 85 per cent were produced. The fact of such a promise indicates
a naive conception of the rights guaranteed to employees by the
National Labor Relations Act, and admits a strong anti-union bias.
The presence of representatives of the management at Union
DECISIONS AND ORDERS 213
meetings and their heckling of union speakers are acts which tend
to thwart union organization and constitute interference with, and
restraint and coercion of, the employees in the exercise of the right to,
self-organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities, for the purpose of collective bar-
gaining or other mutual aid or protection.
B. The discharges
The respondent during 1937 discharged a great many men. The
respondent's whole working force approximates 220 men. During
May, June and July 1937, over 60 men were discharged. As to many
of the discharges the respondent adduced no evidence to rebut testi-
mony that the men had been discharged pursuant to an unfair labor
practice as defined by the Act. In a great many cases, the respond-
ent did produce testimony to explain the discharges.
A discussion of the discharges appears below. However, several
general observations are necessary before the discharges can be
individually discussed.
During June 1937, a petition was circulated at Kitts. The peti-
tion stated that the signers did not want to work with Union men.
George Whitfield testified that he found this petition on his dinner
pail on June 9, 1937, and that he then made a speech to the men.
He told them that he thought the petition, which was referred to by
employees as "the yellow-dog petition" or "yellow-dog paper", was
a very valuable paper and that he was going to have it framed.
Then, according to his own testimony, he requested the Union em-
ployees to leave "like men". Other accounts of his speech indicate that
he may have spoken in stronger terms. At the least, it appears that he
so couched his language as to indicate that he did not want Union
men to continue in his employ. Some of the Union men received
slips which entitled them to get from the respondent's offices what
was due them. The receipt of such a slip, known to the men as "an
order for their time", signifies discharge.
On July 14, 1937, a banner was hung across the mouth of the
mine which contained words in substance as follows, "Although they
call us yellow dogs, we are 100 per cent Americans and will not
work with Union men". Jerry North, who carries a gun around
the camp and is very often in the company of Dan Killion, a mine
guard, told Petrie and George that they were going to strike that
day in protest against the employment of Union members. There
was a good deal of laughing and joking among North, Petrie, and
George, according to the testimony. George' then ordered the mine
shut down, and said to John Fagg "Hell, yes, give everyone of them
214 NATIONAL LABOR RELATIONS BOARD
(referring to the Union men) their time, we've got to get these men
back to work". Groomster, one of the colored employees, who was
also a preacher, made a speech to the assembled men in which he
stated that because of the Union "the men would become cuckold,
their wives and daughters whores and their sons gun thugs and
thieves". Some of the men were given orders for their time. A
parade, referred to by employees as "the yellow-dog parade", was
organized, and the men marched through the camp behind the banner
referred to above. The respondent furnished two kegs of beer for
the white, and one or two kegs for the colored employees. A. F.
Whitfield, Jr. stated that the respondent furnished the beer after
being requested to do so by the men. Then, at about 4 p. m. the
men reconvened, and certain Union men were "voted out" by a
procedure which, as may be seen from the discussion below of the
discharge of Ed Howard, was farcical. The next day, George Whit-
field after climbing to the top of the motor said to the assembled
men "Boys, we have got two or three men here and we ain't going
to let them work and tie this mine up here and keep us out of
work". George and Ed Whitfield then discharged more Union men
on the ground that the other men refused to work with them. At no
time was there any spontaneous outbreak of non-union men against
Union men. Except for the two occasions mentioned, there is no
evidence whatever that non-union men refused to work with Union
men.
The motivating cause for the discharges of June 9, 1937, and July
14, 1937, was the Union affiliation of the discharged men. The Act
prohibits the discouraging of membership in a labor organization
by discrimination in tenure of employment. The discharges on'these
two days had the clear tendency of discouraging membership in
United Mine Workers.
It is evident that in the present case, there was no real desire not
to work with union men. The events of July 14 and June 9 were
organized and led by Jerry North, Claus Dalton, and Charlie Ander-
son. It has already been pointed out that Anderson and North
were regarded by many men as being in close touch with the respond-
ent. Dalton was often seen in the company of Petrie, the Whitfields,
the deputy sheriffs and the other armed men in the camps. These
were the men who circulated the yellow-dog petition and who took
the leading role on July 14.
The zeal of the respondent in discharging Union men because the
non-union men refused to work with them, is, in light of the facts,
a suspicious circumstance. The Union organizers claim a majority
of the men at Kitts as members. Over 60 employees who were dis-
charged testified that they belonged to the Union. The claim of the
respondent that it would have had only 19 men to work the mines
DECISIONS AND ORDERS - 215
had it not discharged the Union men is, therefore, hardly tenable.
Many of the discharged employees testified to conversations with
Petrie, Fagg, and Ed Whitfield which clearly indicated that their
discharges were unfair labor practices under the Act. Although
these three were at the hearing, they did not take the stand to refute
the testimony . On August 30, 1937 , three weeks after the close of
the hearing , the respondent asked leave to introduce into evidence,
the testimony of these three men on the ground that such testimony
could not have been intelligently taken before the record of the
testimony had been transcribed . The Board denied the motion.
Charles Russell. Charles Russell worked for the respondent from
November , 1936 to June 1, 1937. He joined the Union on May 3,
1937.
On Tuesday, June 1, 1937 , Roscoe Petrie called him over and told
him that he was fired for loading dirt . When dirt as well as coal,
is loaded in the coal car, it often results in jamming the tipple when
the coal is dumped into it. 'Russell testified that a loaded car is
tipped on the tipple the next run day after the car is loaded. There
had been no work on Monday, and hence the coal in the car would
ordinarily have been loaded on Saturday, if it caused trouble with
the tipple on Tuesday . Russell testified that he did not work on
Saturday.
At any rate , it appears that this would have been Russell's first
offense. John Herman, the tipple boss , stated that he did not know
whether a man was ever fired for his first offense in loading dirt.
He also stated that he never had any reason for dissatisfaction with
Russell 's work before . Russell testified that the 'company rule had
been a five-day lay-off for the first offense and discharge for the
second.
Raymond Muncie and Park Osborne, the men who were working
with Russell , testified that he was loading dirt. They admitted,
however, that they were all not loading "clean coal ," a term which
means coal without dirt. Yet, of the three, only Russell was dis-
charged. The others were not even reprimanded.
Russell's average monthly earnings during his last two months
of employment were $53.59.
. Taylor Miller. Taylor Miller had been working for the respond-
ent steadily for three years. He joined the Union on May 10, 1937
and was president of the Local.
On May 29, 1937 , he left the door to the third mine entry open,
and George Whitfield, who was behind him at the time , discharged
him. It appears that the door is one of the devices used to keep air
in the mine , and that it should-be kept closed. The door is opened
when it is necessary to drive a motor into an entry . It is then
necessary for the motorman to stop, get out, and close the door. If
67573-38-vol iv-15
216 NATIONAL LABOR RELATIONS BOARD
there is a coupler on the train of cars, it is his function to close the
door. There was conflict in the testimony as to whether Miller
should have been given a coupler to work with him on this occasion.
Miller stated that he had been warned, as one of a body of men,
to keep the trap doors closed, and that he had once been warned per-
sonally after having left a trap door, not the one in issue, open.
On the other hand, Miller testified that he had previously left
the door open in Roscoe Petrie's presence, and nothing was said.
Further, he stated that he could have gotten the cars in the entry
and backed out in the time it would have taken him to shove the trip.
of cars in, clear the door, stop the train, close the door, get the cars
that were in the entry or leave some cars in the entry, and open the
door again to drive out.
Jess Killion, who had been a motorman with the respondent,
testified that motormen left the trap door open when they didn't
have a coupler with them. E. A. Chandler, who worked in another
entry, but nevertheless had opportunity to see the trap door in issue,
stated that during his employment with the respondent, the trap.
door had frequently been left open. Miller testified that during his
seven years with the respondent, he did not know of a discharge for
leaving a trap door open. Another trap door protecting air for the
same entry had been broken at "one or two in the evening" and the
respondent did not have it fixed until the next evening. Jess
Walters, the motor boss, testified that Miller was a good motorman.
The evidence thus far leaves in doubt the question of whether or
not Taylor Miller was discharged for union activities. The question
is resolved, however, by a consideration of other factors. Miller
was president of the Union Local. He operated a grocery store
which appeared to have been a hangout for the men working at the
Kitts mine, and Miller's effectiveness as a worker for the union would
obviously be enhanced.
That the respondent was aware of this is indicated by the testi-
mony of Ernest Weatherly, who testified that on Friday, May 28,
1937, the day before Miller's discharge, he and Petrie were in Miller's
store at a time when Miller was on the porch talking to another man.
On Saturday morning, May 29, Petrie and Fagg came to Weatherly's
working place and this conversation followed :
Wasn't you down at Taylor Miller's store last night?
Yes.
Do you know what Taylor Miller and that fellow ha to say ?
I was on the inside and they were outside.
I want you guys to know that if you start organizin around
here you can all go back to the farm, because we • ill shut
this mine down before they can organize here.
DECISIONS AND ORDERS 217
Jack Whitfield was present during this conversation.
Sometime between the last-of May, 1937 and the first of June,
Weatherly was warned by Fagg that if he didn't quit hanging
around Taylor Miller's store he "would be put on the list."
Taylor Miller averaged $120.41 per month during March and
April, 1937. He has operated his store since his discharge, but he
also did this while he was working for the respondent.
Matthew Jennings B7'yan Filden. M. J. B. Filden had been with
the respondent for six years. For the last ten months of employ-
ment with the respondent, he operated the drums. The drum which
is at the top of an incline has two cables wound around it, and it.
is equipped with brakes. It is used to let cars down the incline to a.
place under the tipple and to pull the cars back again. Filden had.
joined the Union on May 28, 1937, at Taylor Miller's house, which
was just in back of Miller's store. He testified that Roscoe Petrie
and Roy Sexton, known as a "snitch", saw him leave. The next.
morning, May 29, 1937, he was discharged, for having his drum cables
too hot. Taylor Miller was discharged on the same day.
There was some testimony as to Filden's letting the cars down the
incline too fast and pulling them up too fast, and that the former in-
volved some danger to the men working at the tipple. But Filden
testified that he was encouraged by the Whitfields to "shoot the coal
over the mountain". His fast operation of the drums evoked praise
from the Whitfields. Ed Woods and Charlie Campbell testified that
Filden was a good drum man.
The evidence, especially when considered with the evidence relating
to Taylor Miller, indicates that the real motive for Filden's discharge
was that he was a Union man.
Filden's average monthly earnings for March and April, 1937, were
$196.87.
Jess Killion. Jess Killion, a motor man, had worked for the re-
spondent for two years. At a Union "speaking" on May 30, 1937 he
was nominated for the position of president of the Local. He de-
clined the nomination because he was not married and was afraid
he would do something wrong. One of the Whitfields who was at-
tending the meeting, was standing close to him at the time.
The next day, May 31, 1937 Roscoe Petrie said to him "Jess, get
your damned belongings and get off that motor, you are fired". Kil-
lion asked if he was being fired for turning a trip of cars loose and
Petrie told him that that was not the reason. When Killion again
asked, Petrie said "I got a right to fire who I please, I won't ask Turn-
blazer (president of District 19) or nobody else."
Witnesses for the Company testified that Killion had turned three
empty cars loose in one of the working places and had caused the
218 NATIONAL LABOR RELATIONS BOARD
cars to wreck on a switch. One of the witnesses for the Company,
Booker T. Yarbaugh, said he had seen Killion pull the pin. How-
,ever, Gaither Bell, the coupler on the train of cars, said he was the
one who had uncoupled the empties, though he claimed it was done
at Killion's order. There was much confusion among the witnesses
as to whether the motorman or the coupler is in charge of the train.
Killion testified that the motor was pushing the cars into the working
place at the time, that the coupler is in charge of coupling and un-
coupling cars, and that he did not tell Bell to uncouple the cars.
Cars often jumped the track in this mine. The fact that Killion
was discharged the day after he was nominated as president of the
Local, and the fact that no investigation was made of the cause of
these cars jumping the track, although it is clear that Killion may not
have been at fault, leads to the belief that this incident was seized
upon as an excuse to discharge one who was considered prominent in
the Union.
His average monthly earnings during his last three months of em-
ployment were $125.21.
Estel Brock. Estel Brock had been with the respondent for 18
months. He joined the Union on May 14, 1937. On May 16, he
became sick with the mumps and was away from work until June 1.
When he came back to work, Petrie told him it was reported that
he had joined the United Mine Workers. Brock admitted doing this
before he got the mumps. Petrie then said, ". . . get your damn
tools and go to the house, and if I need you any more I will send
for you." Since that incident, new men have been hired, but Brock
has not been recalled. This cast doubt upon the contention of the
respondent that Brock's place had been practically worked out, and
that there was no place for him. It is significant that the day after
Brock was fired, Jim Cooper heard Petrie say, "I knew he was
mixed up with the union men and I do not want any union man
up here, and I want to get rid of them." When Ed Howard, a fel-
low employee, asked Petrie to give Estel his job back, Petrie started
talking about the Union.
Brock's average monthly earnings during March and April, 1937,
were $112.32.
Dock Carnahan. Carnahan had been with the Company almost
two years. On May 31, he went to a union meeting, and joined the
Union that day. One of the Whitfields was present at the meeting.
The following day George Whitfield came into his working place
and said "You ain't scaled your God damned top this morning and
you have loaded your God damned car without any timbering done;
you can get your God damned tools and get out, you ain't got no
God damned safety timbers." Carnahan said that, although he had
no timber in front of his car, he was working on the side of the
DECISIONS AND ORDERS 219
car and had three timbers across the break. One of the witnesses for
the Company admitted that Carnahan had three "protection" tim-
bers up, but pointed out that the safety timbers were lacking. George
Whitfield testified that Carnahan was a very careless man. Carna-
han had been fired in February for leaving a stick of powder around.
The rule in the mine is that the safety timbers must be up and the
top must be scaled.
Although the case is not free from doubt, the evidence does not
permit a finding that Carnahan was discharged for union activity.
The allegations of the complaint with respect to the discharge of
Dock Carnahan will be dismissed.
Clarence Lloyd. Clarence Lloyd joined the Union on May 29,
1937. He stopped working for the respondent on June 1, 1937. As
he was going to work on June 1, 1937, he met John Fagg, who said
"There goes a man that laid off to get to join the union." Lloyd
answered that helhad laid off because his buddies didn't go to work
with him. Fagg then said "You'll have to take the bottom all day
for nothing."
It was customary for coal loaders to take bottom in their rooms
and the entry to their rooms gratuitously, but not to take bottom
outside of their rooms without being compensated. Lloyd said the
bottom he was asked to take was four or five feet outside of his room
and extended for 100 feet. Lloyd told Petrie that if a track man were
sent to help take the track off, he would help take the bottom. Track
men have special tools to take the track up. After waiting ' a long
while for a track man, Lloyd sent word that they couldn't take the
track alone. Word was sent back that if they didn't want to take
the bottom, they should take their tools out. Taking out tools sig-
nifies that work for the respondent has ended.
His earnings during the last two months averaged $84.27 a month.
He has earned $35 since his discharge.
Howard Lloyd. Howard Lloyd had worked for the respondent
since January 7, 1936. In August, 1936, he quit and was off for two
months. He got his job back by promising Petrie that he would
vote in the local elections. He joined the Union on May 15, 1937.
On June 4, 1937, Lloyd went to a union meeting. On the way
there he stopped and talked to Claus Dalton, the motor boss, and they
walked to the meeting together. The next day Lloyd was discharged.
The respondent adduced no evidence at the hearing to explain the
discharge.
His average monthly earnings for April and May amounted to,
$69.05. He has earned $2.50 since his discharge.
Jack Ricketts. Jack Ricketts had worked for the respondent for
18 months. Before working for the respondent he had worked at
220 NATIONAL LABOR RELATIONS BOARD
another place steadily for nine years. He joined the Union on June
1, 1937. Two of the Whitfields saw him at the union meeting on
the highway. On June 5, 1937, Petrie entered his working place,
looked in his car and said "Jack, you are loading dirt. Get your
tools and get out of here."
Will Farmer, a witness for the respondent, said that he cleaned
about three to five shovelfulls of dirt from Ricketts' car. He was,
however, uncertain of the time of this occurrence. Even assuming
that this was at the time of the discharge, Farmer said that the soft
dirt could not stop the tipple, and that when one is shoveling in soft
bottom, some dirt is bound to get into the car.
His average monthly earnings for April and May, 1937, amounted
to $84.66. i
Verda Patterson. Patterson related the incident of June 9th, when
George Whitfield read the yellow dog petition and stated "I am not
going to exactly discharge them, but I am going' to see that their
demand is granted." Then followed the events previously described.
Patterson went in on the man-trip to get his tools. When Petrie -
saw the tools piled up, he said "What does this mean." Patterson
answered "I guess I am one of the bunch this morning, Pete." Petrie
asked, "You ain't joined the Union, have you?" Patterson said, "I
have," and Petrie then said nothing further.
His average monthly earnings for April and May amounted to
$123.14. He has worked at Black Mountain since July 17, 1937, and
has made $23, but he prefers work at Kitts.
James Williams. James Williams, a coal loader, had been with
the respondent since January 2, 1936. He joined the Union on May
15, 1937.
He was on the inside when George Whitfield was speaking outside,
on June 9, 1937, with respect to the yellow dog petition. At about
8: 30 or 9: 00 A. M., Roscoe Petrie came in and asked him if he
belonged to the Union. When Williams answered that he did,
Petrie said : "Get your tools, get out of here and don't load another
block of coal."
The respondent adduced no evidence to explain the discharge.
Williams' earnings for April and May, 1937, averaged $60.40 a
month. He has earned $25 since his discharge.
Jack West. Jack West joined the Union on June 8, 1937. On
the same day, he had refused to sign the yellow dog petition. The
next day, Petrie came to his working place and asked him why
he hadn't signed. When West answered, "I got me a union card
yesterday evening instead of signing that paper," Petrie said, "You
can get your damm tools and get out."
The respondent adduced no evidence to explain the discharge.
DECISIONS AND ORDERS 221
His average monthly earnings for his last two months of employ-
ment amounted to $90.64. Since his discharge, he has made $5
picking berries.
Dillard Wilder. Dillard Wilder had been with the respondent
for 18 months. He joined the Union on June 8, 1937.
On June 9, 1937, after George Whitfield had made his speech on
the yellow dog petition, Wilder walked up to Whitfield and said
"George, I am a union man, I joined the Union." Whitfield gave
him a notice for his time right then. The respondent adduced no
evidence to explain the discharge.
His average monthly earnings for April and May, 1937 amounted
to $103.33.
Ernest Weatherly. On June 9, 1937, after George Whitfield had
made his speech about the yellow dog petition, Ernest told Whitfield
he belonged to the Union. He was given an order for his time.
Weatherly's average monthly earnings during his last two months
of employment were $147.31.
Ancil Miller. Ancil Miller went up to George Whitfield after the
latter's speech and told him he was a union man and asked Whitfield
what he was going to do. Whitfield said "Why, you heard what
was said," and wrote Miller an order for his time.
His average monthly earnings during his last two months of
employment amounted to $87.83.
Howard Harris. Howard Harris joined the Union on May 31,
1937. On June 9, 1937, after Whitfield had spoken about the yellow
dog petition, Harris went up to Whitfield and told him that he was
a Union man. When Whitfield wrote him an order for his time,
Harris asked if his work had been satisfactory. Whitfield replied,
"It has been but maybe the Union can do more for you than I can."
His average monthly earnings during his last two months of
employment amounted to $138.80.
Walter Hopkins. Hopkins joined the Union on May 14, 1937.
On June 9, 1937 Petrie sent him to a working place where Hopkins
would have had to move from 20 to 25 cars of gob (rock and dirt)
and would have had to work for nothing for about a week. This
appears to have been in a section of the mine that became known
to the Union men as "Turnblazers Home" because Union men were
assigned to work in it either as a punishment or a means of forcing
them to quit. Hopkins testified that when Petrie assigned him. to the
place he had asked Petrie whether there would be any pay for
removal of the rock. Petrie answered "No, if you don't want that
get your tools and get outside on. the road". Petrie then said that
that was where he was putting all the Union men.
R. L. Bolton, a witness for the respondent, testified that he and
his son cleaned up the place to which Hopkins had been assigned.
222 NATIONAL LABOR RELATIONS BOARD
He stated that he made $6.12 a day working in that place.
Hopkins had been a coal loader for 21 years. It appears unlikely
that he would be unable to analyze a place as a good working place
or a bad one, and that he would refuse to work on a good place.
The fact that the incident occurred on June 9, 1937, a day on which
there were a great many discharges of and discriminations against
union members, gives further reason for belief in the truth of his
story.
He earned $73.68 in May 1937.
Earl Crabtree. Earl Crabtree had been working for the respond-
ent since January 7, 1936. He joined the Union on May 31, 1937.
After George Whitfield's talk on the yellow dog petition, Crabtree
went up to where three more fellows were getting orders for their
time. Whitfield looked up and said "Do you want one?" Crabtree
said, "I do".
His average monthly earnings for April and May 1937 amounted
to $120.45. He has earned $3 since his discharge.
Randolph Bledsoe. Randolph Bledsoe had worked for respondent
for about three and one-half years. He joined the Union on May
29, 1937. On June 7, 1937 Lawrence Hensley, a machine man,
brought around the yellow dog petition, saying, "Here is a paper
I want you fellows to sign." Bledsoe refused.
On June 9, 1937, Petrie came up to where Bledsoe was working and
announced,' "All you fellows in here didn't sign that company union
and have Union cards in your pockets, get your tools and get out.
You automatically fired yourselves." Bledsoe took his tools and left
the mine. His average monthly earnings during his last two months
of employment amounted to $108.45.
Kelley Wright. On June 9, 1937, Petrie told Kelley Wright what
had gone on outside the mine. Petrie then said that he had heard that
Kelley was a Union man. When Kelley said that he was, Petrie
said, "If I was you I would be man enough to go out like the,rest
of the men had done." Kelley promised to do so when he finished
loading the car. He then ran after Petrie, and told him that he had
not yet joined the Union. Petrie let him continue with his work.
It was the general rule that the Company would hold the money if
a man quit or was discharged, apparently until the Company houses
were vacated.2 June 10 was pay day and Wright was trying to delay
until then. On June 10, Wright got his pay and then joined the
Union. On June 11, Kelley told Petrie that he had joined the
Union. Petrie said that the men refused to work with Union men,
that they couldn't afford to lose a bunch of men on account of one
2 The reasons for holding the money appear not from Wright' s testimony , but from the
testimony of other men.
DECISIONS AND ORDERS 223
man. Wright then said there was nothing he could do except to go
out, and he did so.
His average monthly earning for his last two months of employ-
ment amounted to $95.34.
Robert Humphleett and Ernest Duncan. Ernest Duncan had
worked for the-respondent for two years. Robert Humphleet had
been working for the respondent since February or March, 1936.
These two men worked together. They had joined the Union on
June 7, 1937. On June 11, 1937 they attended a meeting at the Union
hall. Roscoe Petrie was parked by the road as they came by on their
way home. They were discharged on the next morning, June 12,
1937.
Prior to their joining the Union, they had caught Roscoe Petrie
going through Humphleet's jacket, on the pretense of looking for
liquor. On that occasion, Petrie had pulled out a paper from the
jacket pocket, which turned out to be an envelope containing some
aspirin tablets. Petrie appears to have been looking for union
cards. A few minutes after this incident he started questioning
Humphleet as to whether the man he was working with was affiliated
with the Union.
On June 12, 1937, they had been working for about ten minutes
when Petrie came in and discharged them both for not pulling loose
slate on the face of the coal. Humphleet called three men over to look
at the rock which he had not pulled.
This rock was sticking out over the face of the coal for about six
inches. Hilton, one of these men, testified that the place was in work-
ing order. Henry Hall, another of respondent's witnesses, stated that
it is usual for a miner to overlook loose rock in the ceiling. He stated
he had seen men fired for not pulling loose rock from the ceiling, but
that men had also not been fired for that offense.
Duncan's average monthly earnings for April and May, 1937,
amounted to $131.70. He has earned $2 since his discharge. Humph-
leet's average monthly earnings over the same period were $130.03.
Ester Saylor, also called Estill Saylor. Saylor had been working
for the respondent since May 25, 1937. He joined the Union on June
7, 1937. On Friday, June 11, 1937, he went to a Union meeting.
On Saturday, the 12th, he was ill with dysentery, for which he had
a doctor's certificate. That evening he went to town and met Roscoe
Petrie, who said, "I am going to give you this (sic) time for not
working a rush place." When Saylor pleaded that he had been ill,
Petrie said that he didn't care and that he knew Saylor belonged to
the Union. It was testified to by other witnesses that Petrie had been
watching the Union meeting of June 11, 1937.
Saylor thinks he averaged from three to four dollars a day while
working; he had not received a statement, and respondent's exhibit
does not show anything except his earnings for May 1, 1937, as $7.78.
224 NATIONAL LABOR RELATIONS BOARD
Milford Dugger. Milford Dugger had been working with the Coin-
pany steadily for three years. He joined the Union on June 6, 1937.
On the same day he had a hemorrhoid. He told Petrie if he didn't
get better that day he would have to lay off. He went to a doctor that
evening, and stopped at Taylor Miller's store on the way back. There,
Jerry North was inducing people to sign the yellow dog petition.
The men asked North if there was any danger and North said they
had taken the paper to the G-men, who had said it was all right. Some
men signed and some refused. When North asked Dugger why he
had refused, Dugger said that he was a Union man and that, further-
more, he didn't know that North was a boss of any kind. North said
"I am not a boss. Me and Val Dunn and Jerry North are appointed
to look after this business." After North had said he didn't think
Dugger would sign up with the "red neck" bunch,the stated-with re-
gard to the paper "It is just a petition that the miners got up and the
Company got up and the miners are signing." When Dugger again
refused to sign, North said, "You might as well pack your suitcase
and down the road you travel." Dugger replied "You seem to know
about it" and North answered "I got orders from headquarters right
across the road" (apparently referring to the main office). North
then asked Dugger about Dugger's stepson, Ed Turner. Dugger said,
"You need not bother for sending for him, for he sure will not sign
that." North said, "Well, all right then. You are both up against it."
Dugger's further testimony was as follows :
A. Well, so I went home that day and was disabled to work
all over that week, so I moved off out to the store on Saturday,
June the 12th, and I met Val Dunn and Jerry North out there.
Val says, "Dugger," he says, "Come around here. I want to see
you a minute." I says, "All right." So he and Jerry North
went around the store and sat down beside a car. He says,
"What is the matter with you, Dugger?" He says, "You gone
crazy?" I says, "What do you mean?" He says, "Taking `off
after these red necks, this evening." I says, "United Mine
Workers of America?" He says, "Yes." I says, "No, I have
just begun to come to my senses." He says, "Well," he says,
"Do you want to go back to work?" I says, "Yes, sir, I do."
He says, "Well, tear up that card and you go back to work a
Monday." So those fellows came crowding around me, around
the store. I shook my head and I backed, off and I said, "I'll
see you fellows later." So I walked off from them and went
home. So Monday morning I went back on the hill, me and
my son, Ed Turner.
DECISIONS AND ORDERS 225
Dugger testified that on Monday, June 14, 1937, he and Ed Turner
went back to work. George Whitfield came up, looking angry and
said "bugger, I gave your place away four or five days ago, haven't
got any other place for you."
It is significant that, although Dugger quoted conversations with
or in the presence of North, Dunn, Anderson, and Bill Jackson, none
of these men was called upon to refute Dugger' s testimony.
His average monthly earnings for his last two months of employ-
ment amounted to $95.42.
Herman Minton. Herman Minton had worked for the respondent
for about ten months. He joined the Union on June 3, 1937. He
testified that Roscoe Petrie watched the road and watched people going
to Union meetings, and that Petrie saw men attending a meeting
between the time he joined the Union and the time he was discharged.
On June 15, 1937, Petrie stopped the place where Minton was
working because the bottom was heaving badly. Minton was then
assigned to "Turnblazer's Home." He quit when Petrie told him
he would not be paid for removing the rock, which he estimated to
be from three to five days' work.
His average monthly earnings for April and May, 1937, amounted
to $78.30.
Robert Miller. Robert Miller had been with the respondent for
four years. He joined the Union on May 10, 1937. On or about
June 1, 1937, Jerry North tried to get him to sign the yellow dog
petition. When he refused, North said, "Well, you are a good man,
but you won't be here long if you don't sign."
Miller was sick from June 4 to June 15, 1937, reporting his illness
to the respondent. When he went back to work, he was told that
his place had been given away and that there was no work for him.
His average monthly earnings for April and May, 1937, amounted
to $57.38.
Cleve Crider. Cleve Crider had been working with the respond-
ent since February 20, 1934. He went to a union meeting on June 11,
1937, and on the way back ran into Roscoe Petrie at the forks of the
bridge. On June 12, 1937, he became ill. He didn't go to work again
until Tuesday, June 15. He had worked an hour, when Petrie came
in and fired him for having laid off on a rush place.
His average monthly earnings for April and May, 1937, amounted
to $82.56.
Lawrence Dugger. Lawrence Dugger had joined the Union on June
8, 1937. Between June 8 and June 15, he attended Union meetings.
At that time, he laid off for about eight days, and when he returned
to work George Whitfield told him that he had given his place away.
226 NATIONAL LABOR RELATIONS BOARD
The allegations of the complaint with respect to the discharge of
Lawrence Dugger will be dismissed.
Roscoe Carroll. Roscoe Carroll had worked for the respondent
since November, 1935. He joined the Union on June 7, 1937. He
had signed and then scratched his name off the yellow dog petition.
On June 15, 1937, he had worked a day cleaning up a place. Then
Petrie and Fagg came through and said they would have to change
him. They assigned him to a place in "three-main head" that was
so dangerous he refused to go in.
His average monthly earnings for his last two months of employ-
ment amounted to $74.34.
Fred Hill. Fred Hill had worked for the respondent off and on
-for two years. He joined the Union on June 4, 1937. On the
-morning of June 16, 1937, Petrie and Fagg came to his working
-place and asked him if he belonged to the Union. When he said
-that he did, they said, "You know that these men don't want to work
with a union man." Carroll replied, "I'd heard that they did."
Petrie then said, "You can go out and maybe Jack Miller can clear
your money for you."
His average earnings for his last two months of employment
amounted to $66.53.
Benjamin Wells. Benjamin Wells had worked for the respondent
for 18 months. He joined the Union on June 4, 1937. On June 15,
1937, the union field organizer held a meeting on the railroad op-
posite the colored quarters and Wells attended that meeting. Early
the next morning Fagg and Petrie came to his working place and
asked if he had attended the union meeting. When Wells said that
he had, he was asked if he had joined the Union. When he admitted
having done so, they asked him if he knew any other men who
belonged to the Union. He said he did not. The conversation then
continued as follows : "Don't you know that the men don't want
to work with no union man?" "Well, fire me then." "No, get your
tools and get out, we ain't going to have no union men here." "Well,
write an order for my time." "Go to the office and tell them you
-quit."'
E. Lemar, a witness for the respondent, testified that Wells was
-discharged by Petrie for working in loose rock. Lemar also testified
-with respect to Humphleet, saying that the latter had not removed
loose slate from the face of the coal.
Neither Petrie nor Fagg were called upon to refute Wells' testi-
Inony. His testimony was clear and straight-forward, and indi-
cates that Wells was a credible withess. Wells' average monthly
earnings for his last two months of employment were $93.51.
Corey Hood. Corey Hood had been with the respondent for
fifteen months. He joined the Union on May 26, 1937.
DECISIONS AND ORDERS 227
On June 16 , 1937, Petrie came to his working place and asked
him when he joined the Union. Hood said that'he had joined about
two or three weeks before . When Petrie asked who induced Hood
to join, Hood replied , "I joined of my own free will." Petrie then
said, "Well, I am going to move you this morning of my own free
will. Get your tools and go to three hill and tell Fagg to put you
to work and tell Turnblazer that I run these mines. " When Hood
went to Fagg , Fa ;g started talking about the Union generally.
The conversation then continued as follows :
Don't you know these fellows don 't want to work with you
men calling them scabs , they can 't afford to do that.
I don't do that.
Don't you know this company ain't going to have no union.
Don't you know they would shut down before they would do.
it?
Then Fag took Hood to a place in three main heading. Corey-Z4
Hood estimated that there were twenty tons of rock there and about
two or three cars of coal. Fagg said that Hood would not be paid
for removing the rock. Fagg agreed that there was very little coal
and said "two more of your brothers will be around here in the
morning." Hood refused to work at that place.
Hood's monthly average during his last two months of employ-'
ment was $106.24. He has earned $1.29 since he stopped working for-
the respondent.
Thomas Lynch. Thomas Lynch had been working for the respond-
ent for 11 months. On June 1, 1937, Petrie came up to him and
said, "I got a clear report on you. I learned you joined the Union."
When Lynch admitted it, Petrie said, "You know they don't want to.
work no union man down here," and then proceeded to take Lynch
out of his working place and told John Fagg, the cut boss, to "take
him on down three main heading and put him down there with the
rest of the union men." When Lynch saw the place to which he
was now being assigned, a place full of slate and slumps, he said
he didn't want to work there because he couldn't make anything.
Lynch estimated that the new assignment involved a month's free
work.
When he again remonstrated at being changed from his good
working place to this one, Fagg said, "Well, if you don't want to
work down here, you know what you have to do, you have to give-
up your tools." Lynch left the mine, and when asked by George-
Whitfield what he was doing, told George of the incident. George
asked for his name and check number and gave him an order for
his time.
228 NATIONAL LABOR RELATIONS BOARD
Lynch's average monthly earnings for his last two months of
employment were $66.71.
L. E. Hill, Malcolm Hill, and Howard Hill. L. E. Hill had worked
for respondent for eight or ten years. He joined the Union on
June 7, 1937 and stopped working after June 12, 1937. Neither
he nor his three sons would sign the yellow dog petition. On June
12, they had worked their place out. They were transferred to an-
other place, which the track man said wasn't yet ready to work.
When they came back on the 16th, Fagg told them their place would
take three or four days to fix. The Hills left their tools in the shop,
after George Whitfield had said they would not be in his way. They
came back on Monday, June 21, and asked John Fagg if their place
was ready. Fagg said he would see Petrie. Petrie then stated that
they had brought their tools out and quit, although their tools had
been in the shop all the time. They then brought the tools out.
Howard Hill, a son of L. E. Hill, who had been with the respond-
ent for six or seven years, told substantially the same story. He
did not leave his tools in the shop, however.
Malcolm Hill, a son of L. E. Hill, had joined the Union on June
5, 1937. He had signed up several people in the mine. One boy
who had been signed up showed his card to everyone; the card had
Malcolm Hill's name on it. Malcolm's testimony was" substantially
the same as that of his father and brother.
Witnesses for the respondent stated that the Hills told them they
were quitting until they got a better place. One of these witnesses,
G. C. Dalton, was one of the men who carried the yellow dog peti-
tion around. He admitted being the possessor of several guns, and
his very obvious eagerness to testify favorably for the respondent in-
dicates that little credence can be placed upon his testimony. An-
other of the witnesses, Goodson, testified to the same effect. Goodson
also testified to damaging conversations with Omer Simpson and
Kermit Sargent, two of the men whose names appear on the petition.
W. F. Wells, another of the witnesses, testified as to what the Hills
told them. W. F. Wells testified also as to damaging conversations
with Kermit Sargent, and Clarence Lloyd, two of the men whose
names appear on the complaint.
In balancing the conflicting stories, the choice is between the
straightforward testimony of the Hills and the stories of the wit-,
nesses for the respondent. Because belief in the latter must rest
on an assumption that several of the men named in the complaint
were decidedly loose-tongued, and that each of respondent's wit-
nesses happened to be the confidante of several of the workers named
in the complaint, the Board is of the opinion that belief in the story
of the Hills is more reasonable.
DECISIONS AND ORDERS 229
Malcolm Hill's average monthly earnings during his last two
months of employment were $99.76. For the same period L. E.
Hill's average monthly earnings were $101.83 and Howard Hill's
monthly average $85.17.
Herman Helton and Sewell Hurst. Herman Helton had been with
the respondent from August, 1936, to June 28, 1937. Sewell Hurst
worked for the respondent from March 10 to June 28, 1937. Both
joined the Union on June 12, 1937.
Helton went to a union meeting on June 25. Petrie, in a car, drove
up and down two or three times and could not have avoided seeing
Helton. Jerry North presented the yellow dog petition to Hurst,
and Hurst refused to sign.
On June 26, 1937, Petrie came to the working place of Helton and
Hurst, and told them they weren't going to get that working place.
He told them Fagg would tell them where they were to work. When
they went to Fagg, he said, "Well, I don't know. What's the matter
with you fellows." Helton told him that they belonged to the Union.
Fagg then took them to "Turnblazer's Home." Fagg didn't know
if anything would be paid for removal of the rock. They estimated
that it would take about a month to clean up the rock. Helton aid
Hurst decided to come back on Monday, June 28, 1937, and sees
Petrie. At that time, Petrie told them that if they didn't want to
move the rock for nothing, they could get their tools. Helton and
Hurst then left.
Helton testified that his old working place was given to two new
men, one of whom had been with the respondent for only three days.
Hurst averaged $108.58 in April and May, 1937. Helton made
$117.92 in May.
Jim Cooper. Jim Cooper had worked for the respondent for six
months. About June 21, 1937, Petrie asked him if he belonged to
the Union. Cooper told Petrie that he had joined.
Petrie then took him out of his working place, which had not been
worked out, and sent Cooper to "three main," "Turnblazer's Home."
Another man was put in Cooper's old place.
As Cooper was walking over to "three main," he met Fagg, who
asked him where he was going. Fagg said, "Over there with the
rest of the boys? . . . Well, I've got two more union men, I am
going to send over there. You'll have company when you get there.
There's two there already." Fagg then told him that nothing would
be paid for the necessary removal of rock. Cooper testified that it
would take a month or more to clean up the place as Fagg directed.
He refused to work there. His average earnings for May and June,
1937 were $113.60.
Allen Garner and Charles Clawson. Charles Clawson had been
with the respondent for twelve years. Allen Garner had been with
230 N'ATION'AL LABOR RELATION'S BOARD
the respondent since September, 1935. Garner joined the Union on
June 10, 1937. On about June 21, 1937, he admitted to Fagg that
he had joined the Union. Clawson joined the Union on June 12,
1937. Willie Mason, known as a "snidge" 3 was with him when he
left the church to go to join the Union.
Clawson testified that he had worked his place and was put in
with Allen Garner in a poor place, where, on some days, they wouldn't
be given a car. On the morning of June 29, 1937, Fagg told them
that Petrie wanted to see them. Petrie showed them a place in three
main heading where it would take ten or fifteen days to get to the
coal. When they demurred at working in that place, both Garner
and Clawson were given orders for their time.
Garner averaged $124.37 in April and May, 1937. He has made
$5 since June 29, 1937, the day when he stopped working. Clawson
made $132.71 in May, 1937.
Arnold &,nith,. Arnold Smith had worked for the respondent since
January 1, 1934. He was a coal loader except for the last three
months of his employment, during which time he was a coupler.
Smith joined the Union on June 30, 1937, and was discharged on
July 1, 1937. On June 30, Bill Whitfield, Charlie Anderson, and
Roscoe Petrie saw Smith, Taylor Miller and Howard Harris follow
a union sound truck.
The next day, at about 10: 30 A. M., Roscoe Petrie discharged
Smith for not lining up the switch with the main line. It appears
that failure to do so might lead to a collision of coal cars. Because
the possibility was not too great (ordinarily only one motor was
present on a line), the men had not been too careful to line up the
switches when they drove the motor and cars into an entry, especially
if they intended to stay only a few minutes. Roy Sexton, the motor-
man for whom Smith was coupler, testified, as a witness for the
respondent, that Petrie said, when he discharged Smith, "Arnold, I
am going to let you go, it is too dangerous to.leave those switches
open and I have got to start firing them, if I don't will (sic) get
somebody killed."
There was conflicting testimony as to whether ,the coupler or, the
motorman was responsible for lining up the switches. Sexton testi-
fied, however, that the function of lining the switches might depend
on whether the train of cars was being pushed in or pulled in by
the motor. It is reasonable to believe that the function was allocated
according to convenience. Sexton had been a motorman for three
years. Smith had be a coupler for three weeks. On the occasion
now being discussed, there was just a motor, with no cars, so that
Sexton could' have noted the oversight. That an inexperienced man
Clearly referring to one who reveals to the employer the activities of a fellow employee.
DECISIONS AND ORDERS 231
should have been summarily discharged, while an experienced man
who was in a position to correct the oversight or to direct the other
man, was not blamed in any way, is indicative that the incident was
being exploited for the purpose of discharging a man who had joined
the Union the day before. It is significant that the statements of
the witnesses for the respondent, called upon with respect to Smith's
claim, as to the responsibility of lining the switches being exclusively
the coupler's, are not entirely consistent with the testimony of those
of the respondent's witnesses who were called upon to refute Jess.
Killion. In the latter case they said that the coupler was at all
times subject to the orders of the motorman. It is significant, too,
that one of respondent's witnesses, Black, a motorman with respond-
ent for four years, stated that he did not know of an instance of a
man being fired at the Kitts mine for leaving a switch unlined,
although he knew of other occasions on which the switch had not
been lined with the main line.
Smith made $129.30 in March and $76.00 in April, his average for
the two months being $102.65. He has made $5 since his discharge.
Jim Collins. Jim Collins had worked for the respondent for about
four years. On July 2, 1937, George Whitfield came into his working
place and said, "Jim, I will have to fire you, you will have to hunt
you another job, I heard you belonged to the union . . . We can't
have no trouble between the men for two or three union men... .
Before I will take a union man back after he is fired, I will shut
these mines down and go to a farm." Collins then said, "Well, give
me an order to show you fired me," and Whitfield did so.
In the absence of satisfactory explanation for the discharge, George
Whitfield's denial of the conversation, without more, is not sufficient
to refute the fact of discriminatory discharge.
In his last two months of employment, Collins averaged $117.57.
Lee Roy Cole. Lee Roy Cole had been working steadily for the
respondent since October or November, 1936. Roscoe Petrie and
George Whitfield saw him at a union "speaking" the last day of
May, 1937. He joined the Union on July 2, 1937, and was discharged
without explanation on July 3, 1937. The respondent adduced no,
evidence to explain the discharge.
His earnings for April and May, 1937, averaged $117.05. He has
made $6 or $8 since the discharge.
Charles Hurley and A. P. Hurley. Charles Hurley had worked
for the respondent for about seven months and A. P. Hurley had
worked for respondent for four and one-half to five years, off and on.
They both joined the Union on June'7, 1937.
Shortly before they joined the Union, they were approached by
Foster Lees, who presented the yellow dog petition to them and told
them that if they didn't sign, it meant their job. They signed.
67573-38-vol iv-16
232 NATIONAL LABOR RELATIONS BOARD
A. P. Hurley then reconsidered the matter over the week-end and
on Monday, he took his signature off the petition. Charles Hurley
had also erased his signature.
On or about June 23', Petrie asked each of the Hurleys if he be-
longed to the Union and received an affirmative answer in each case.
Petrie argued for awhile and left. About a week later, George Whit-
field came around and insisted on discussing the Union with A. P.
Hurley. On this occasion, Whitfield went into a diatribe against
the Union.
On July 4, 1937, one Jack Ellick, who was quite intoxicated at the
time, went through Charles Hurley's yard, a way he does not usually
take, went over to A. P. Hurley's house, and started a fight with
A. P. Hurley. After a while, Charles Hurley went over. The fight
created a scene and Ed, George, and Jack Whitfield came up. George
Whitfield told Ellick he would be all right after he got a little sleep,
and started to take Ellick home. He told A. P. Hurley he wanted
to see him and his brother when he got back. George Whitfield re-
turned in about thirty minutes and said to the Hurleys, "I am going
to have to fire you boys." When asked for the reason, he said, "Well,
one thing, the men don't want to work with you." "Oh, why don't the
men want to work with me and my brother?" "Well, because you all
joined the union, the United Mine Workers, and they refused to work
with you." A. P. Hurley stated that no one had ever refused to work
with him. The reasons for the discharge as stated on A. P. Hurley's
discharge slips were "causing resentment among men."
It appears that the fight was in no way the fault of the Hurleys and
that in fact Charles Hurley was not a participant until it had been
going on for some while. Ellick was intoxicated and was on the
property of the Hurleys. The incident furnished an excuse for dis-
charging the Hurleys.
The average monthly earnings for the last two months of employ-
ment of A. P. Hurley were $110.20, and of Charles Hurley were
$106.79.
Ed and Earl Howard. Ed Howard and Earl Howard, his son,
worked for the respondent from March 3, 1937, to July 14, 1937.
When the Howards came to the mine on July 14, 1937, they saw
the banner already referred to hanging over the drift mouth. The
banner had writing on it to the effect that "they" were called yellow
dogs and scabs but were in reality 100 per cent Americans, and re-
fused to work with union men. Jerry North made a speech and said
that they refused to work with union men, and that they were going
to carry the banner down the hollow, through the camp, and back
to town, and that they would also refuse-to work with anyone who
failed to march behind the banner. Then Preacher Groomster made
DECISIONS AND ORDERS 233
his speech, and George Whitfield ordered the mine closed. The march
then started. The Howards did not march.
When the men came back, Ed Howard told Jerry North that he
wanted them to consider his case, that he wanted to be a neutral and
was neither union nor non-union. North told him to be back at
four in the afternoon.
At the meeting in the afternoon, Jerry North read off the names
of the men who had not signed the yellow dog petition. When Ed
Howard's name was called, he stepped forward and said that he de-
aired to be a Christian man, and that he couldn't lie to his con-
science. He asked the meeting to take a vote as to whether they
desired to work with him. They took a vote and only four voted
Against him. A second vote was held, and only a few men voted
against him.
Then Bill Woods began to say that this preacher was no better than
any other preacher that, had signed the yellow dog contract, and that
they would let him sign it or go down the road. At a third vote,
the vote was even. Then Jerry North, a fellow with North, and Bill
Woods began to curse and swear and told everyone they would have
another chance. They called on everyone to raise their hands, and
everyone, including the women and children who were present, did.
North, Bill Woods, and John Fagg were intoxicated at the meeting.
Earl Howard's story is the same.
During May and June, 1937, Ed Howard's monthly average was
$78.18 and Earl Howard's was $78.19.
Robert Hill. Robert Hill and his father, I. T. Hill, who was not
named in the complaint, refused to sign the yellow dog petition on
July 14, 1937, during the speeches and marching. They went to
work the next morning. George Whitfield then stopped the man
trip and said to the Hills, "You fellows are not going to work, them
men don't want to work with you." Ed Whitfield said, "These men
don't want to work with you." I
Robert Hill had been working for the respondent since June 7,
1937. From June 7 to the end of the month, Robert Hill made
$70.63.
Elmer Reedy. Elmer Reedy worked for the respondent from
May 6, 1937 to July 14, 1937. He has been a member of the Union
since March 30, 1937. When he came to work on July 14, he saw the
sign over the driftmouth and was told that there was going to be a
"yellow-dog strike". Claus Dalton said that all who did not march
would be fired. Reedy did not march.
After George Whitfield had ordered the shop and the substation to
be shut down, he said that all men who had union cards or had not
signed the yellow dog paper would be fired. Reedy was afraid of
being beaten if he went to work, and did not try to go back.
234 NATIONAL LABOR RELATIONS BOARD
His average monthly earnings for May and June, 1937 were
$80.42.
J. D. Parker. J. D. Parker had worked for the respondent for
about five weeks when he was discharged on July 14, 1937. He joined
the Union on June 23, 1937. On July 14, he saw Petrie come up,
laughing, and order the nien to get to work. He then saw Jerry
North come up and say to Petrie 'that a strike was being called and
that the men would not work with those who had not signed the
yellow dog paper.
Parker saw Fagg counting out Fred Wilson's time. Parker said,
"Are you counting out men's time for not signing a yellow dog
paper? I haven't signed it, and I am not going to." Fagg said,
"George, what about writing this fellow's time out?" George Whit-
field said, "Write all their time out. Give every damn one of them
their time together. We got to get these men back to work." Reedy's
time was then written out.
Reedy earned $54.59 in three weeks in June 1937.
Ed Woods. Ed Woods had worked for the respondent for six
and one-half years. He was a screen man at the tipple. He joined
the Union on May 10, 1937. He had never signed the yellow dog
petition. On July 14, 1937, when the yellow dog strike took place,
Ed Woods was not interested, and went back to his house.
Before going back he had heard Claus Dalton say, "You boys are
too God damned little to sign this paper, you will get on a farm."
Woods said to Dalton, "All right, thank you very much."
The next day he and Charlie Campbell were told by John Her-
man, the tipple boss, that he would have to send them back because
the men refused to work with union men. Herman then wrote
out an order for Woods' time.
Woods' average monthly earnings for May and June, 1937 were
$114.89.
_ Charlie Campbell. Charlie Campbell had worked for the re-
spondent for three and one-half years. He was a coupler on the
rope, at the tipple. He joined the Union on June 10, 1937.
On July 14, 1937, someone said to him that 250 men were striking
because of 12 union men. When he reported for work on the 15th, .
Herman told him that he had no job that morning, that a man had
been put in his place. When Campbell asked why he was being fired,
Herman said, "The men refuse to work with union men."
His average monthly earnings for his last two months of employ-
ment amounted to $102.12.
Honer Byrd. Homer Byrd had been working for the respondent
since June 10, 1933. He joined the Union on June 14, 1937.
DECISIONS AND ORDERS 235
Byrd testified that on July 14, 1937, George Whitfield ordered
the shop and the substation closed, saying that there was a strike that
day.
Byrd did not march in the parade, nor did he sign the yellow dog
petition.' On July 15, he was discharged by George Whitfield.
When he asked for a reason, Whitfield said that the men refused to
work with him. "In other words," Byrd said, "for not signing that
paper and joining and belonging to the United Mine Workers?"
Whitfield said, "That's it" and then told him that the order for his
time was waiting for him at the office.
During May and June 1937, Byrd's average monthly earnings
were $78.98.
Fred Roe. Fred Roe worked for the respondent from Decem
ber, 1936 to July 15, 1937. He joined the Union on June 23, 1937,
Roe did not march in the July 14, yellow dog strike parade. On
July 15, he reported for work. He and three other men were waiting
for the man-trip. The other men kept away from these four. When
the motors were brought out, George Whitfield got up on top of a
motor and said "Boys, we have got two or three men here and we
ain't going to let them work and tear this mine up here and keep us
out of work." Roe said, "If you call that fair, I want an order for
my time." Ed Whitfield then said, "We don't have to give you any
order for your time. You fellows ain't nothing but trouble makers.
You fellows ain't even going inside and get your tools." Roe left.
Roe was on a salaried basis. During May and June 1937, he
averaged $139.00 per month.
E. A. Chandler. Except for a 30 day period in 1936, E. A.
Chandler had been working steadily for the respondent since No-
vember, 1934. Chandler joined the Union on June 6, 1937. He
stopped working for the respondent on July 15, 1937.
On July 14, 1937, when the yellow dog petition was circulated,
Chandler told Roscoe Petrie, "I didn't come here to sign papers, I
came here to load coal. If I can't work, give me an order for my
time." Roscoe did not at that time give him an order for his time.
On the next day, Ed Whitfield gave a talk in which he said "Ain't
no four or five United Mine Workers going to keep all these men
from working. You boys (the designation included Chandler) get
off the hill." Chandler asked for an order for his time. Ed said,
"You damn fool, you don't get no order. When you get out of the
house you will get a settlement."
Chandler averaged $138.12 a month during his last two months of
employment.
C. P. Parker. C. P. Parker had worked for the respondent for
fourteen years, off and on, building and repairing cars in the shop.
He joined the union on July 14, 1937.
236 NATIONAL LABOR RELATIONS BOARD
Val Dunn asked him to sign the yellow dog paper . Parker said
he would study it. About July 13, 1937 , Jerry North said to him,
"Parker, you're a damn good man, hate to see you leave here, but
if you don 't sign this paper you know what it means." On the-
morning of July 15, 1937 , George Whitfield discharged hini without
giving any explanation . The respondent presented no evidence at
the hearing to explain the discharge.
During May and June, 1937 , Parker 's monthly average was $97.02.
John Green . John Green had been working for the respondent for
fifteen months when he was discharged on July 19, 1937 . He joined
the union sometime in July, 1937. He signed the yellow dog petition
because he felt that would insure him his job.
On Monday , July 19, 1937, he went to work as usual . Claus.
Dalton got on a car and said "All you Yellow Dogs get up this way,.
up in the drift at the mouth of the mine ." Then he said , "There
are two men in our ranks this morning that don't belong here and
that is John Green and Carl Reedy . We know definitely John Green
does belong to the union but we don 't know about Carl Reedy.`
Roscoe Petrie and George Whitfield were present at the time Green
asked Whitfield for an order for his time.
Green's average monthly earnings during his last two months of-
employment amounted to $ 115.64.
William Disney . William Disney had been with the respondent
since May 7 , 1937. He was a track man. He joined the union on-,
July 16, 1937.
On about July 6, 1937, he was injured . While he was unable to
work, the yellow dog parade took place and men who had not signed-
the yellow dog petition were read out of the respondent company.'
The petition had been presented to Disney three times and he had
failed to sign it.
Disney went back to work on the morning of July 19. That
morning there was a "speaking ." Preacher Groomster and Claus-
Dalton said there were some men there who had not signed the peti-
tion and mentioned John Green and Carl Reedy specifically . Disney
then spoke to Roscoe Petrie about getting Disney's tools . Petrie
said he didn 't care anything about. the tools, but he wanted Disney
to get out of the way.
Disney's average monthly earnings during May and June, 1937,.
amounted to $129.20.
Charlie Killion and George Griffith. On Friday , February 19,
1937, which was not a "run day" at the Kitts mine , Killion and
Griffith and Milford Dugger went to Virginia . Dugger testified
that he and Griffith just went to see the country . Killion went to
look for a job. The Virginia mines are considered "union fields."
DECISIONS AND ORDERS 237
When they returned to work on Monday (they had missed no work,
since Saturday was also an off day) they were not given any more
work. Killion testified that Petrie fired him for "going into union
fields on union speakings." Killion testified, that he told the
respondent that he "figured on quitting" and that he would give an-
other man eight days, if that other man took his place while he was
gone. Walters, the motor boss testified that Killion gave orders to
get another man to take his place and that Killion said that that
would be his last week.
Jim Cooper testified that Petrie, when talking about the Union,
pointed out what Griffith and Killion had gotten into by going into
the union fields.
Killion had been with the- respondent from 12 to 14 years. Grif-
fith had been with the respondent from five to six years. Neither
missed a day of work by this week end trip. Their discharge under
such circumstances is highly suspicious and appears to have been
part of the respondent's anti-union campaign.
The average monthly earnings of George Griffith during the last
two months of employment were $145.28.
The average monthly earnings of Charlie Killion during 'the last
two months of employment were $146.17.
William Walker. William Walker was with the respondent for
five years. His father-in-law, a union organizer, visited him. Roscoe
Petrie made inquiries about the father-in-law. A letter to the father-
in-law from Turnblazer, postmarked May 14, 1937, was not delivered
until May 29, 1937. Mason, the postmaster at Kitts, also gives out
the scrip for the respondent. When Walker called for his mail every
day, during the period from May 14 to May 29, Mason would say
that there was no union mail that day.
Witnesses for the respondent testified that Walker quit because
he did not like to work on the night shift. Walker says that on May
15, 1937, he was transferred to a very bad working place on three
main head and when he said he couldn't work in that place, Bill
McNally, the night boss, discharged him.
The Board finds that William Walker was discharged in order to
discourage membership in the United Mine Workers.
His average monthly earnings during the last two months of em-
ployment were $69.45.
Frank Fannin. Frank Fannin had worked for the respondent for
nine months when he was discharged on May 21, 1937. He had
joined the union on May 11, 1937.
On May 20, 1937, he was going around getting contributions for
coal for the home of one of the men who was sick. Ray Gross, a
deputy sheriff, did not allow him to go through Golden Ash, saying
238 NATIONAL LABOR RELATIONS BOARD
"Well, you sure can 't take it through this place . His daddy is an
organizer for the United Mine Workers." However, A . F. Whitfield,
Jr. contributed a quarter to the collection.
Fannin was discharged the next morning . The boss told him the
discharge was for ordering a car back and not loading it, and Petrie
told him he was discharged for leaving early in the night time.
Fannin was described by McNally, the night boss , as "what I call
:a careless man and I discharged him, for he would sleep around in
the mines, and he would leave his dirt for day men to load, and would
order cars back and would not load them , and walked out and that
was against the rules and I discharged him."
Fannin's employment record shows that for the two year period
before he worked at Kitts, he was with four companies , staying with
none for any great length of time. He admitted getting drunk
-about once a month, although he denied that he was ever drunk on
the job.
The allegations of the complaint with respect to the discharge of
Frank Fannin are hereby dismissed.
John Osborne. Osborne had worked for the respondent for four
months. He joined the Union on May 15, 1937 . He stopped work-
ing for the respondent on May 21. He refused to take bottom
(remove dirt which was pushed up from the floor by the weight of
the mountain ) in the main room. The testimony was confused as
to whether coal loaders had to take bottom at places other than their
,own working place. But Osborne was assigned to the taking of the
bottom several days before he joined the union.
The allegations of the complaint with respect to the discharge of
John Osborne are hereby dismissed.
Kermit Sargent. Kermit Sargent quit on May 26, 1937 when he
was asked to take bottom at a place that was not his working place.
This was usually the track man's rather than the coal loader's work.
Sargent stated , however, that it would have taken him only an hour
to do this work.
Sargent did join the Union on May 15, 1937. It is not clear, how-
ever, that he was discharged for union activity.
The allegations of the complaint with respect to the discharge
of Kermit Sargent are hereby dismissed.
Omer Simzpson. Simpson had worked for the respondent for
eighteen months. He joined the union on May 15, 1937. On May
28,1937 4 he and his buddy , Sargent, were asked to take bottom about
250 feet from his working place. He refused and was not given any
cars as a result . He asked for his time. It is not clear that he was
discharged for union activity.
4 Either Simpson or Sargent is wrong as to the date.
DECISIONS AND ORDERS 239
The allegations of the complaint with respect to the discharge of
Omer Simpson. are hereby dismissed.
Except in those cases where it has been indicated that the allega-
tions of the complaint were to be dismissed, the Board finds that the
men were discharged because of union affiliation, activities, and asso-
ciations, and that by such discharges the respondent has discrimi-
nated in regard to hire and tenure of employment, and has thereby
discouraged membership in a labor organization, The United Mine
Workers of America.
IV. EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed 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.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following conclusions
of law :
- 1. The United Mine Workers of America is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. The persons listed in Appendix A were, at the time of their
discharges and at all times thereafter, employees of the respondent
within the meaning of Section 2 (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The respondent, by discriminating against the persons listed
in Appendix A in regard to hire and tenure of employment and
terms and conditions of employment, thereby discouraging member-
ship in the Union, has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
5. The respondent has not engaged in an unfair labor practice
within the meaning of Section 8 (2) of the Act.
6. 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 and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that Clover
240 NATIONAL LABOR RELATIONS BOARD
Fork Coal Company, its officers, agents, successors, and assigns shall :
1. Cease and desist from discouraging membership in United Mine
Workers of America or any other labor organization of its employees
by discharging or refusing to reinstate any of its employees, or dis
criminating in the assignment of working places to its employees, or
in any other manner discriminating in regard to the hire or tenure
of employment or any term or condition of employment of any of
its employees;
2. Cease and desist from contributing to, cooperating with, or
assisting, through membership therein or otherwise, the Harlan
County Coal Operators Association or any other organization en-
gaged in interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the National Labor Rela-
tions Act;
3. Cease and desist from (a) maintaining surveillance of or em-
ploying any manner of espionage for the purpose of ascertaining
and investigating the activities of United Mine Workers of America
and of the activities of its employees in connection with such organi-
zation or any other labor organization; (b) indicating to its em-
ployees the respondent's attitude and desires with respect to the
relationship of its employees to any particular labor organization,
or indicating to its employees the respondent's judgment of union
organizers or particular labor organizations; (c) threatening to close
its mine if its employees join with any labor organization; (d)
expressing to its employees its approval of anti-union sentiment or
activities; and (e) in any other manner interfering with, restraining
or coercing its employees in the exercise of the right to self-
organization, ,to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
National Labor Relations Act;
4. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to the employees listed in Appendix A immediate and
full reinstatement to their former positions, without prejudice to
their seniority and other rights and privileges;
(b) Make whole the employees listed in Appendix A for any loss
of pay they have suffered by reason of the respondent's discrimina-
tion in regard to hire and tenure of employment, by payment, re-
spectively, of a sum of money equal to that which each would have
earned as wages during the period from the date of such discrimina-
DECISIONS AND ORDERS 241
Lion to the date of the offer of reinstatement, less any amount each
has earned during that period;
(c) Post immediately notices to its employees in conspicuous places
in and about the mine and at the tipple stating : (1) that the re-
spondent will cease and desist in the manner aforesaid, and (2) that
such notices will remain posted for a period of at least sixty (60)
consecutive days from the date of posting;
(d) Notify the Regional Director for the Ninth Region within
ten (10) days from the date of this order what steps the respondent
has taken to comply herewith.
And it is further ordered that the complaint be, and it hereby is,
dismissed with respect to the discharge of the persons listed in
Appendix B, and in so far as it alleges that the respondent has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (2) of the Act.
APPENDIX A
Randolph Bledsoe
Estel Brock
Homer Byrd
Charlie Campbell
Roscoe Carroll
E. A. Chandler
Charles Clawson
Lee Roy Cole
Jim Collins
Jim Cooper
Earl Crabtree
Cleve Crider
William Disney
Milford Dugger
Ernest Duncan
Matthew Jennings Bryan Filden
Allen Garner
John Green
George Griffith _
Howard Harris
Herman Helton
Fred Hill
Howard Hill
L. E. Hill
Malcolm Hill
Robert Hill
Corey Hood
Walter Hopkins
Earl Howard
Ed Howard
Cliva Ausmus
Danier Burt
Charles Carmicael
Dock Carnahan
Bill Collins
John Crabtree
Milford Crabtree
Clyde Daugherty
Charles Delph
Roscoe Delph
''Falter Dermis
Robert Humphleet
A. P. Hurley
Charles Hurley
Sewell Hurst
Charlie Killion
Jess Killion
Clarence Lloyd
Howard Lloyd
Thomas Lynch
Anvil Miller
Robert Miller
Taylor Miller
Herman Minton
C. P. Parker
J. D. Parker
Verda Patterson
Elmer Reedy
Jack Ricketts
Fred Roe
Charles Russell
Ester Saylor
Arnold Smith
William Walker
Ernest Weatherly
Benjamin Wells
Jack West
Dillard Wilder
James Williams
Ed Woods
Kelley Wright
APPENDIX B
Lawrence Dugger
Frank Fannin
Carl Flannigan
Curtis Freeman
Earl Hughes
Hiram Minton
Willie Norfleet
John Osborne
Kermit Sargent
Omer Simpson