Eastern Gas and Fuel Associates

National Labor Relations Board - Board Decisions

May 28, 1946

68 N.L.R.B. 324 (N.L.R.B. 1946)

In the Matter of EASTERN GAS AND FUEL ASSOCIATES and UNITED
CLERICAL, TECHNICAL AND SUPERVISORY EMPLOYEES OF THE MINING
INDUSTRY, DIVISION OF DISTRICT 50, UNITED MINE WORKERS OF
AMERICA
Case No 9-C-2037.-Decided May 28, 1946
DECISION
AND
ORDER
On February 13, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices affecting
commerce and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the respondent filed exceptions to
the Intermediate Report, and a supporting brief. On September 11,
1945, the Board at Washington, D. C., heard oral argument in which
the respondent and the Union participated.
The Board has considered the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermediate
Report, the respondent's exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions, additions, and modifi-
cations noted below :
1. We concur in the Trial Examiner's conclusion that the supervisory
employees of the respondent who are members of Local 303 of the Union
are not barred fom the protection of Section 8 (1) and (3) of the Act.
In our recent decision in the Jones & Laughlin case,' involving the same
union as that involved in the present proceeding, we had occasion to fully
reconsider the entire question of the status of supervisory employees
under the Act. We there reiterated our previous consistent holdings
that supervisory employees such as those here concerned are "employees"
within the meaning of the Act and held that they are entitled to be repre-
I Matter of Jones & Laughlin Steel Corporation , Vesta-Shannopin Coal Division , 66 N. L. R. B
386
68 N L R. B, No. 40.
324
EASTERN GAS AND FUEL ASSOCIATES 325
sented by the Union in the exercise of the rights guaranteed them in
Section 7 of the Act. Our holding in that case, and the rationale upon
which it is based, is decisive of the issue in the instant case.
2. The Trial Examiner found, and we concur, that by the statements
of Superintendent Hunter, and General Foremen Carman and Taylor in
questioning employees concerning their union membership and activities,
in disparaging the usefulness and effectiveness of the Local and the
Union, and in discouraging them from continuing to adhere to the Local,
and by the totality of such conduct, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act. Taylor is found by the Trial Examiner to
have made statements both during and after his employment by the re-
spondent. The only statements of Taylor which are attributed to the
respondent and upon which we base our finding of illegality, are those
which were made during the period of his employment by the respondent.
3. In its brief before the Board, the respondent excepts to the follow-
ing findings of the Trial Examiner :
(a) The Trial Examiner found that Superintendent Hunter knew of
Hicks' prominent role in organizing the Union. He based this finding
upon several items of evidence, one of which is stated in the Intermediate
Report as follows : " * * * the fact that the wash house, where Hicks
did most of his soliciting, was frequented by Hunter." The respondent
objects to the word "frequented" on the ground that the record shows
only one visit by Hunter to the wash house. The record thus supports
the respondent's objection and the finding quoted above is hereby stricken
from the Report. However, the other evidence bearing on this issue and
set forth in the Intermediate Report makes it clear that Hunter was
aware of Hicks' outstanding activities in behalf of the Union. We so
find.
(b) In describing General Foreman Carman's third visit to the mine,
during which he found Hicks' men mining the coal improperly, the
Trial Examiner finds that Carman said nothing to Hicks about the
manner in which the men were mining out the pillar. Hicks, however,
testified that Carman "told me those fellows up there weren't doing
their work properly and explained to me what they were doing." Thus
the Trail Examiner is incorrect in his finding and the Intermediate Report
is hereby modified to conform with the testimony above quoted. How-
ever, this change does not in any way affect the validity of the Trial
Examiner's conclusion, with which we fully agree, that, but for Hicks'
prominent role in organizing the Union, the respondent would not have
discharged him.
(c) The Trial Examiner found that, at the time of the hearing, the
remaining active union committee members were no longer employed
at the respondent 's mine. The record, however, shows that Bonds, a
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee member, is still employed at the mine. It is true that the
record does not indicate that Bonds is an active member of the com-
mittee - and therefore the Examiner is literally correct in his finding
- but we are of the opinion that the respondent 's objection is never-
theless well founded. Accordingly, footnote No. 26 of the Intermediate
Report, in which the finding in question is made, is hereby stricken. This
in no way affects the conclusion that the respondent violated Section 8
(3) in discharging Hicks, for whether or not Bonds or any other com-
mittee member was any longer in the respondent 's employ was not con-
sidered in reaching that conclusion.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Eastern Gas and Fuel Associ-
ates, Beckley, West Virginia, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Clerical, Technical and
Supervisory Employees of the Mining Industry, Division of District
50, United Mine Workers of America, or Local 303, or any other
labor organization of its supervisory employees, by discharging and
refusing to reinstate any of its supervisory employees, or by dis-
criminating in any other manner in regard to their hire or tenure
of employment, or any term or condition 'of their employment;
(b) In any other manner interfering with, restraining, or coercing
its supervisory employees in the exercise of the right to self -organi-
zation, to form labor organizations, to join or assist United Clerical,
Technical and Supervisory Employees of the Mining Industry, Di-
vision of District 50, United Mine Workers of America, Local 303,
or any other labor organization of its supervisory employees, to
bargain collectively through representatives 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 Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer James Hicks immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges ;
(b) Make whole James Hicks for any loss of pay he may have
suffered by reason of the respondent's discrimination against him,
by payment to him of a sum of money equal to the amount which
EASTERN GAS AND FUEL ASSOCIATES 327
he normally would have earned as wages during the period from
the date of his discharge to the date of the respondent's offer of
reinstatement, less his net earnings during such period;
(c) Post at its Stotesbury No. 8 mine, at Stotesbury, West Vir-
ginia, copies of the notice attached hereto, marked "Appendix A."
Copies of said notice, to be furnished by the Regional Director of
the Ninth Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon re-
ceipt thereof, and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced
or covered by any other material ;
(d) Notify the Regional Director for the Ninth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent engaged in unfair labor practices by vilifying, calumni-
ating, and maligning the Union and its leaders and organizers, by threat-
ening employees with discharge or other reprisals if they became or re-
mained members of the Union, and by offering to employees preferential
treatment as to wage increases, job security, and working conditions
if they refrained from joining or assisting the Union, or engaging in
other concerted activities relative to self-organization be, and it hereby
is, dismissed.
MR GERARD D. REILLY, dissenting:
For reasons which will be set forth hereinafter, I am constrained to
dissent from the decision which the majority has reached in this case.
The situation which confronts us is illustrative of the difficulties we
have had reason to expect since the decisions in the Matter of Packard
Motor Car Company' and Jones & Laughlin Steel Corporation, Vesta-
Shannopin Coal Division 2 The majority of the Board in the American
Steel Foundries case,3 in which I dissented, had before it some of the
practical problems inherent in a situation in which a supervisor's adher-
ence to union policy collides with the duties of his position. Yet in that
case the area of conflict was circumscribed, since the supervisory em-
ployees involved belonged to an independent union limited to foremen.
In the case before us we are faced with the question of whether or
not a foreman 's activity on behalf of a union which has a contract with
his own company for the mining employees is protected under Subsection
161 N. L. R. B. 4.
2 66 N L. R B. 386.
3 Matter of American Steel Foundries, Indiana Harbor Works, 67 N L R. B. 27.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (3) of the Act. In posing this question , I am assuming the facts
to be substantially in accord with the findings of my colleagues , although
it will be noted that the counsel for the respondent made out a strong case
for the view that the Company's motive in discharging the complaining
witness was entirely unrelated to his union membership and activity.
Although the record before us is not complete as to the relationship
between the charging union in this case, United Clerical, Technical and
Supervisory Employees Union of the Mining Industry, Division of
District 50, United Mine Workers of America, and the United Mine
Workers, the record in the Jones & Laughlin case, footnote 2, supra,
contains a full account of the matter, of which judicial notice may be
taken. The majority in that case found:
As presently established, the U. C. T. is nominally a division of
District 50. Actually, it resembles a division of the U. M. W. A.
The U. C. T. has no separate constitution or set of bylaws; it
functions under those of the U. M. W. A. It has two officers, both
of whom were appointed to their present posts by national officials
of the U. M. W. A., although the president, McAlpine, was for-
merly the elected president of the M. 0. U. The salary and expenses
of both officials are paid by the national office of the U. M. W. A.
The only employee, a stenographer, is paid from the U. C. T.'s
own funds. The U. C. T. is under the general supervision of the
U. M. W. A.'s International Executive Board. The parent union's
constitution provides that "The International Union shall have su-
preme legislative, executive, and judicial authority over all members
and subordinate branches * * * " The secretary-treasurer of the
U. C. T. submits regular financial reports to the U. M. W. A.
The U. C. T. organizes clerical and technical employees as well
as supervisors. However, it attempts to keep the two groups apart
by chartering separate locals for supervisors and for non-super-
visory clerical and technical employees. Each of these locals has
an elected set of officials and bylaws adopted by its own member-
ship. The membership of the supervisors' locals meets apart from the
rank and file employees who are members of the various U. M. W. A.
locals. Members of the U. C. T. swear to the oath of obligation
required of all U. M. W. A. members and they pay the same dues
and initiation fees required of direct members of the U. M. W. A.
The dues of U. C. T. members are allocated as are those of the
U. M. W. A. rank and file : of the $2 monthly dues, $.90 goes to
the U. M. W. A. $.65 is assigned to the U C. T, and $.45 remains
with the local.
In my dissent , essentially the same conditions were described :
* * * it is worth noting that while the name of the petitioning
labor organization conveys the impression that it is an autonomous
' EASTERN GAS AND FUEL ASSOCIATES 329
union linked only to the parent body in a formal sense, the record
reveals that this is mere nomenclature adopted by the United Mine
Workers as an organizing device. The petitioner has no separate
constitution or bylaws. All promotion work is handled by two
officials appointed and paid by the international board of the United
Mine Workers. Although these men have the titles of president
and secretary-treasurer, respectively, neither holds office for any
particular term but simply at the pleasure of the international execu-
tive board.
Moreover, a mine supervisor who applies for membership in the
petitioning organization never assumes any obligation to it. In-
stead, if his application is granted, he is admitted as a regular
member of the United Mine Workers and takes the same oath which
is administered to any rank and file member. As will subsequently
appear, the language of this oath is wholly inconsistent with some
of the duties which any supervisor holds to his employer.
At the time the discharge in this case was made the decision of the
Board in the Jones & Laughlin case had not been handed down. The
majority has stated that "our holding in that case, and the rationale upon
which it is based, is decisive of the issues in the instant case." With this
conclusion I am in agreement.
There is no question that the charging union in this case is dominated
by and is an integral and inseparable part of a union which is, and
throughout its history has been, militantly active on behalf of the rank
and file employees. To hold that the U. C. T. has any separate existence
from the U. M. W. is so lacking in realism that elaboration of the
point is unnecessary. It is apparent to me that if Hicks' activity on
behalf of the U. C. T. had been solicited or condoned by the respondent,
the Company under rules of decision repeatedly enunciated by this Board
could have been cited for a violation of Section 8 (2). In view of the
inseparability of the U. C. T. and the U. M. W. it cannot be argued that
the Soss case4 laid down rules which are applicable here. What is done
by an employer to encourage or discourage either the U. C. T. or the
U. M. W. would affect the other organization. It is not germane to
point out that a charge of domination of the U. M. W. by an employer
would under prevailing circumstances be unrealistic. The Act gives to
the Board no license to view such circumstances as controlling. We have
held on many occasions that the participation of supervisors in the
formation or organization of a union is indicative of employer assistance
and therefore prohibited by the Act. In the event that such a dominated
4 Matter of Soss Manufacturing Company, et at, 56 N. L R B. 348 In fact, the majority
opinion in the Soss case made it crystal clear that Section 8 (3) should be viewed as protecting
only (1) passive membership in an affiliated union retained for purposes of pension rights or
transfer privileges, and (2) concerted activity in behalf of a union of supervisors independent
of organizations which represented subordinate employees.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union were divided into two units in an employer's plant, the order of
disestablishment would run against both units even though evidence of
domination or interference pertained only to one of them.
The commanding place of the U. M. W. among labor organizations
in the coal mines does not alter the necessity for maintaining for the
rank and file freedom of selection of their representatives. Where, as
here, we have protected the right of a supervisory employee to engage
in such activity and where that supervisor has in any degree the right to
promote, discharge or in any way alter the terms and conditions of
employment of the rank and file employee, the basic essential of that
freedom has largely been destroyed. The ultimate effect of this decision
can have but one result - unions which succeed in organizing both the
rank and file and the supervisors in any industry will be virtually per-
petuated in their representative status and the ideal of freedom of choice
which the Act sought to promote will become a mockery.
Moreover, the ability of the respondent company to manage effectively
its extended mining operations would be seriously impaired if it were
prevented by law from insulating the subterranean supervisors from
incurring obligations to the organization representing the miners. It is
unnecessary to enlarge upon this point, as the factors noted in my dis-
senting opinion in the Jones & Laughlin case, supra, are clearly present
in this instance.6
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce
our supervisory employees in the exercise of their right to self-
organization , to form labor organizations, to join or assist United
Clerical, Technical, and Supervisory Employees of the Mining In-
dustry, Division of District 50, United Mine Workers of America,
or Local 303, or any other labor organization of our supervisory
employees, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
We will offer to the employee named below immediate and full
reinstatement to his former or a substantially equivalent position
See Michoud, et al. v. Girod, et al, 45 U. S. 503, 555. Where an agent ones fidelity to his
principal , the law does not make the principal wait until the agent has been unfaithful and
then punish him. .. . . . it provides against the probability in many cases , and the danger in all
cases, that the dictates of self - interest will exercise a predominant influence , and supersede
that of duty' Pepper v. Litton, 308 U. S. 295; Meinhard v. Salmon, 249 N Y. 458, 164 N. E.
545 (1929).
EASTERN GAS AND FUEL ASSOCIATES 331
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay suffered
as a result of the discrimination.
James Hicks
All our supervisory employees are free to become or remain members
of the above-named union or any other labor organization of our sup-
ervisory employees. We will not discriminate in regard to hire or tenure
of employment or any term or condition of employment against any
supervisory employee because of membership in or activity on behalf
of any such labor organization.
EASTERN GAS AND FUEL ASSOCIATES,
Employer.
By ........................................
(Representative) (Title)
Dated .........................
NOTE : If the above-named employee is presently serving in the armed
forces of the United States he will be offered full reinstatement upon
application in accordance with the Selective Service Act after discharge
from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mrs. James A Shaw, for the Board.
Mr John M. Crimmins, of Pittsburgh , Pa., and Mr. L. L . Scherer, of Beckley,
W. Va, for the respondent.
Mr. John V. Brennan, of Charleston , W. Va, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on September 9, 1944, by United Clerical,
Technical and -Supervisory Employees of the Mining Industry, Division of Dis-
trict 50, United Mine Workers of America, herein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional Director for the
Ninth Region (Cincinnati, Ohio), issued its complaint dated November 7, 1944,
against the Eastern Gas and Fuel Associates,' herein called the respondent, alleging
that it has engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint, accompanied by Notice of Hearing thereon, were duly served upon
the respondent and the Union.
' The complaint was originally issued against the Koppers Coal Division, Eastern Gas and
Fuel Associates but was orally amended at the hearing , with the consent of the respondent,
to conform to the correct name of the respondent as set forth in its answer to the complaint.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent : ( 1) on or about March 27, 1944 , discharged James Hicks and
thereafter refused to reinstate him because of his membership in, activities on
behalf of, and sympathy for, the Union , and (2 ) that by the foregoing conduct and,
since on or about March 1, 1944, by questioning employees concerning their union
affiliation and other union matters, by urging , persuading , and warning employees
to refrain from becoming or remaining members of the Union , by vilifying, calum-
niating and maligning the Union and its leaders and organizers , by threatening
employees with discharge or other reprisals if they became or remained members
of the Union , and by offering to employees preferential treatment as to wage
increases , job security , and working conditions if they refrained from joining or
assisting the Union or engaging in other concerted activities relative to organiza-
tion, has interfered with, restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Thereafter, the respondent filed an answer in which it admitted the allegations
of the complaint concerning the nature and extent of its business as well as its
interstate operations , admitted that it discharged James Hicks on or about March
27, 1944, but denied it had engaged in any unfair labor practices . At the same time
the respondent filed with the Regional Director a motion for the issuance of a
subpeona dances tecum, calling upon the Union to produce certain documents, and
a motion to dismiss the complaint on the grounds that ( 1) no proper charge had
been filed because the Union was not a labor organization within the meaning of
Section 2 (5) of the Act and (2 ) that the complaint fails to state a cause of action
because supervisory employees who belong to the Union , an organization which
the respondent contends is controlled primarily by subordinate employees , are not
entitled to the protection of Section 8 (1) and (3) of the Act . The motions were
referred by the Regional Director to the Chief Trial Examiner at Washington,
D. C., and were denied by a duly appointed Trial Examiner . Thereafter , the re-
spondent filed an application for permission to appeal directly to the Board from
the ruling of the Trial Examiner denying the two motions . On November 25, 1944,
the Board denied the respondent 's application without prejudice to the right to
renew the motion for the i ssuance of the subpoena duces tecum before the Trial
Examiner at the hearing , and to renew the motion to dismiss upon conclusion of
the hearing.
Pursuant to notice , a hearing was held at Beckley , West Virginia , on November
28, 29, and 30 , 1944, before Louis Libbin , the undersigned Trial Examiner duly
designated by the Chief Trial Examiner . The Board, the respondent , and the Union
were represented by counsel ; all participated in the hearing Full opportunity to
be heard, to examine and cross-examine witnesses , and to introduce evidence
bearing on the issues was afforded all parties . Near the close of the hearing, the
undersigned granted , without objection , a motion by counsel for the Board to con-
form the pleadings to the proof respecting formal matters. At the close of the
respondent 's case, the undersigned granted the respondent's motion to consider its
previous motion to dismiss as being refiled without physically putting another docu-
ment into the record At the close of the hearing the respondent renewed its motion
to dismiss the complaint ; ruling thereon was reserved . The motion is hereby denied
save insofar as it is consistent with the findings , conclusions of law , and recom-
mendations below.
Counsel for the Board and the respondent argued orally upon the record. Subse-
quent to the hearing, the respondent and counsel for the Board filed briefs with
the undersigned.
EASTERN GAS AND FUEL ASSOCIATES 333
Upon the entire record in the case and from his observation of the winesses, the
undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Eastern Gas and Fuel Associates, is a Massachusetts voluntary
association with its principal office at Boston, Massachusetts It is engaged in,
among other things, the mining of coal in connection with which it operates
approximately 20 coal mines in Pennsylvania, Kentucky, and West Virginia, includ-
ing a mine at Stotesbury, West Virginia, which is commonly known as the Stotes-
bury No. 8 mine and is the only one involved in this proceeding. During the past
12-month period, the Stotesbury No. 8 mine, hereinafter sometimes called the re-
spondent's mine, produced coal valued in excess of $1,000,000, 90 per cent of which
was shipped to points outside the State of West Virginia; during the same period,
the respondent purchased, for the operation of this mine, materials valued in excess
of $25,000, 90 percent of which was purchased from points located outside the State
of West Virginia. The respondent concedes that it is engaged in commerce within
the meaning of the Act 2
II. THE ORGANIZATIONS INVOLVED
United Clerical, Technical and Supervisory Emplo) ees of the Mining Industry,
Division of District 50, United Mine Workers of America, and Local 303 thereof,
are labor organizations admitting to membership certain employees of the
respondents
111. THE UNFAIR LABOR PRACTICES
A. The issues raised by the motion to dismiss
The respondent contended in its motion to dismiss and in its argument before the
undersigned that the Union is not a labor organization within the meaning of
the Act and that therefore no proper charge was filed. In its brief submitted to the
undersigned, the respondent has abandoned this contention, stating that it "is now
convinced, however, that its position * * * is not sound."4
The remaining issue raised by the motion to dismiss is whether the respondent's
supervisory employees who are members of Local 303 of the Union are barred
from the protection of Section 8 (1) and (3) of the Act Before disposing of this
issue the undersigned will first consider the background and history of the organ-
ization of the Union and Local 303.
1. Background; organization of the Union and the Local
Since 1939 the respondent has recognized the United Mine Workers of America,
hereinafter called the U M W of A., as the sole collective bargaining representa-
2 The findings in this section are based upon a stipulation entered into by counsel for the
respondent and the Board.
3 As set forth below, on February 3, 1944, the Union chartered Local 303 composed of
employees of various mines, including the respondent's Stotesbury No. 8 mine. This Local has
confined its organizational efforts to foremen below the rank of general mine foremen.
4 In view of the undisputed testimony that the purpose of the Union and its Local is to
seek advancement for its members with respect to wages, hours, and working conditions through
collective bargaining with the coal operators, the undersigned has theretofore found that the
Union and Local 303 are labor organizations within the meaning of Section 2 (5) of the Act.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of the production employees in and around its mines, and , as a member of the
Southern Coal Producers Association, has bargained collectively with the U. M. W.
of A. on a multiple-employer basis together with other employer members of that
Association on behalf of such employees. The contracts, however, exclude from
coverage supervisory, clerical, and technical employees. At the time of the hearing
the respondent employed at its Stotesbury No. 8 mine 370 people, 322 of whom
are members of District 29 of the U. M. W. of A. and are covered by the
U. M. W. of A. contract, and 48 of whom fall within the excluded categories.
About December 20, 1940, there was formed among the supervisory employees
in certain mines in Pennsylvania an organization which grew into the Mine Officials'
Union of America, an unaffiliated labor organization and predecessor of the Union.
In October 1942, the Mine Officials' Union of America sought affiliation with the
U. M. W. of A. which at that time did not admit supervisory employees. During
that month, the U M. W of A. amended its constitution to permit the Inter-
national Executive Board, in its discretion, to provide rules and regulations under
which supervisory and other employees might be admitted to membership. On
February 5, 1943, the International Executive Board of the U. M. W. of A. adopted
a resolution granting the petition of the Mine Officials' Union of America and
admitting its members into membership in the U. M. W. of A. as of midnight
March 31, 1943. This was subject to the condition that the Mine Officials' Union
of America should dissolve and liquidate its affairs as soon thereafter as practical,
and that the members of the Mine Officials' Union of America should be admitted
into existing local unions of the U. M. W. of A or into separately created sub-
divisions of local unions of the U. M. W. of A. under such rules, regulations, and
requirements as should be prescribed jointly by the president, vice president, and
secretary-treasurer of the U. M W. of A and the officers of the various respective
districts, subject to the review of the International Executive Board. On February
20, 1943, the president, vice president, and secretary-treasurer of the U. M. W. of A.
wrote a general letter to the district and local union officers in all bituminous coal
producing districts within the United States, reciting the action of the International
Executive Board and directing the local union officers and the members of mine
committees to present applications blanks for membership in the U. M. W. of A.
to the mine foremen, assistant mine foremen , dock bosses, night bosses, fire bosses,
mine examiners , watchmen, coal inspectors, mine clerks, and other employees for-
merly exempted from membership in the U. Iii W. of A. and to request all such
employees to join the U. M. W. of A. In March 1943, the Mine Officials' Union
of America was dissolved and the former members of that organization became
part of the U. M. W. of A. under the name of the Union Upon admission into
the U. M. W. of A., it was agreed that the officers who had been elected by the
Mine Officials' Union of America were to remain the officers of the Union until
rules and regulations should be promulgated by the Executive Board of the
U. M. W. of A. At the time of the hearing, such rules and regulations had not
yet been promulgated.
The Union has its own set of officers, maintains its own office , has its own bank
account, and has complete supervision over its own funds. It pays monthly dues to
the U. M. W. of A. as part of the international union's per capita tax, and every
6 months submits an audit of its books to the U. M. W. of A. It has no con-
stitution of its own, but is bound by that of the U. M. W. of A. John McAlpine,
president of the Union, credibly testified, without contradiction, that for purposes
of collective bargaining, clerks and technical employees are grouped into one unit;
that supervisory employees are grouped into another unit ; and that meetings are
held separately by each unit.
EASTERN GAS AND FUEL ASSOCIATES 335
Local Union No. 303, hereinafter sometimes called the Local, was chartered by
the Union on February 3, 1944. The Local has its own complement of officers,
elected by the members of the Local which meets regularly every 2 weeks. Each
mine has its own grievance committee elected by, and from, the member employees
of the respective mines. Although clerical, technical, and supervisory employees
are eligible for membership, the Local has confined its organizational activities to
supervisory employees and presumably only supervisors have actually joined.
Accordingly, the witnesses commonly referred to the Local as the "foremen's"
union.
William Hunter is superintendent of the respondent's Stotesbury No. 8 mine.
Subordinate to Hunter and directly responsible to him are C 0 Carman, the
general mine foreman, Mr. Kennemur, the chief electrician, and Mr. Williams,
the mine accountant. The membership in the Local from the respondent's mine
always consisted solely of supervisory employees, for the most part section foremen,
under the general mine foreman and the chief electrician.5 A section foreman
is in charge of about 20 employees who are engaged in the actual mining of coal.
He is responsible for their production and their safety, and has the authority
to discharge them. They, in turn, take their grievances in the first instance to the
section foreman. The remaining supervisors have the authority only to discipline
or transfer their subordinates and to recommend their discharge. Such recommen-
dations, however, are not always followed. In February 1944, approximately 25
supervisors at the respondent's mine, constituting practically the entire supervisory
force below the rank of assistant general mine foreman, joined the Local All the
subordinates of these supervisors belong to District 29 of the U. M. W. of A., and
are covered by the contract of the U. M. W. of A with the Southern Coal Pro-
ducers Association of which the respondent is a members
2 The issue of whether the respondent 's supervisors are barred
from the protection of Section 8 (1) and (3) of the Act
In support of its position that the supervisory employees who are members of
the Local are barred from the protection of Section 8 (1) and (3) of the Act, the
respondent contends that the U. M. W. of A. represents the rank and file employees,
including those at the respondent's mine; that the rank and file employees are sub-
ordinates of, and far outnumber, the supervisors in the Local and the Union; that
the U. M. W. of A. not only organized the Union, but also controls and dominates
it ; and that under these circumstances membership in the Local by the respondent's
foremen is incompatible with full and proper allegiance to management. As
authority for the validity of its position, the respondent relies on the holdings and
the language in Maryland Drydock Company;? Soss Manufacturing Company and
Republic Steel Corporations and Rochester and Pittsburgh Coal Company.9
Assuming, without deciding, the correctness of the respondent's contention that
the U. M. W. of A. controls and dominates the Union, the undersigned does not
S Among those under the general mine foreman are the section foremen, the construction
foreman, the fire bosses, and the dispatchers; among those under the chief electrician, are the
tipple, carpenter, and electrical foremen
The findings in this section are based upon undisputed testimony, stipulations of the parties,
and documentary exhibits.
s 49 N. L. R B 733.
s 56 N L R. B. 348
56 N. L. R B. 1760
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree that it automatically follows from the premises which the respondent urges
and the authorities which it cites, that membership and activities by the respondent's
foremen in Local 393 are incompatible with a proper exercise of their managerial
functions so as to bar them from the protection of Section 8 (1) and (3) of the
Act. All that the Board decided in the Maryland Drydock case, supra, was that it
would not effectuate the policies of the Act to place supervisory employees in
mass production industries in appropriate units for the purpose of having collective
bargaining representatives under Section 9 (c) and 8 (5) of the Act. It is suffi-
cient to say that this case is not in point on the instant issue of whether supervisors
should be accorded protection under Section 8 (1) and (3) of the Act, as the
Board itself later recognized in the Soss case, supra, where supervisory employees
in an unaffiliated foremen's union were held entitled to such protection.
The respondent, however, points out that the principle enunciated in the Mary-
land Drydock case was distinguished in the Soss case on the ground that in the
latter case the Board did not have to predict the future course of the unaffiliated
foremen's union respecting its affiliation with a rank and file organization but only
appraised its status at a past period when the alleged unfair labor practices
occurred. The respondent then reasons that, since in the instant case the foremen's
union was affiliated with and dominated by the U. M. W. of A. at the time of the
occurrence of the alleged unfair labor practices, it ipso facto follows that the
union membership of the respondent's foremen in Local 303 is so incompatible with
a proper allegiance to management as to bar them from the protection of Section
8 (1) and (3) of the Act. This is unconvincing. At most, these are but some
of the factors to be considered in determining, on the facts of each case, whether
union membership by supervisory employees has interfered, or is reasonably likely
to interfere, with a proper exercise of their managerial functions.10
Appraising then the situation which was presented to the undersigned up to
the date of the hearing herein, and considering the organization and structure of
the Union and the Local hereinabove described, the undersigned finds no support
for the respondent's contention that the union membership and activities of the
respondent's foremen in Local 303 are incompatible with their full and proper
allegiance to management. The record does not show, as the respondent contends,
that the respondent's foremen who are members of Local 303 have performed,
or are reasonably likely to perform, their managerial functions improperly or
inadequately, or that the respondent has been, or will be, deterred from its recourse
to its normal disciplinary authority to insure the maintenance of its standard of
work, all because of some alleged coercion or control exercised through the
U. M. W. of A. by the employees whom the foremen supervise. Nor does the
record show that the respondent's rank and file employees have even attempted
to direct or control through the U. M. W. of A. the manner in which the super-
visory employees are to carry out their managerial duties. None of the fears which
the respondent raises or the dire consequences which it predicts have materialized
10 As Chairman Millis stated in his concurring opinion in the Soss case, "My interpretation
of the decision is that . charges of discrimination against foremen will be treated, case by
case, tinder principles underlying decisions made by the Board through the years prior to, and
also largely since, the decision in the Maryland Drydock case was made." The majority opinion
does not take issue with this internretattoo.
EASTERN GAS AND FUEL ASSOCIATES 337
up to the time of the hearing, nor does the record give any reasonable indication
of their materialization in the future.11
On the other hand, the undersigned is mindful of the Board's observations in
the Soss case concerning the salutary effect of protecting supervisors under Sec-
tion 8 (1) and (3) in order to encourage supervisors' organizations voluntarily to
engage in collective bargaining with employers outside the framework of the Act
so long as their adherence to the supervisors' organization does not impinge on the
rights of ordinary employees or affect the employer's position of neutrality. These
principles appropriately may be applied to the instant case. As hereinabove found,
none but supervisory employees are members of Local 303. The undersigned finds
nothing in the organization, structure, and relationship of the organizations involved
which would cause the adherence to Local 303 by the respondent's foremen to
impinge upon the self-organizational rights of the respondent's ordinary employees,
who are members of District 29 of the U M. W. of A., or to affect the re-
spondent's position of neutrality.12 The respondent does not contend to the con-
trary, or make any claim that its conduct, which is alleged to be violative of the
Act, was motivated by a desire to protect its neutrality.
Upon a consideration of the foregoing and the entire record, the undersigned
rejects the respondent's contention and finds that the supervisory employees of the
respondent who are members of Local 303 are not barred from the protection
of Section 8 (1) and (3) of the Act.
B. The discriminatory discharge of, and failure to reinstate,
James Hicks; interference, restraint, and coercion
James Hicks was first employed at the respondent's Stotesbury No 8 mine as a
laborer in May 1934 at the age of 18. After 5 years he was promoted to fire boss,
a responsible supervisory position involving the examination of the mine for safety
purposes prior to the commencement of a shift. Before assuming these duties, he
was required to pass an examination given by the State Department of Mines After
serving in this capacity satisfactorily for about 5 months, he was promoted to
section foreman, a still higher supervisory position, in charge of coal production
and responsible for the safety of about 20 men. With the exception of a period
from December 1941 to March 1942, Hicks continued to serve in the capacity of
section foreman until his discharge on March 25, 1944, allegedly for unsatisfactory
work during that week. At the time of his discharge, Hicks was the oldest section
foreman in point of seniority 13
" Nor is the respondent's position supported by the Rochester and Pittsburgh Goal Company
case, supra, where the Board dismissed the petition of a union seeking to be the bargaining
agent for a unit of clerical and technical employees because the record showed that the super-
visory members of the union organized the union , far out-numbeied the non-supervisory
members, and controlled the affairs of the union. Aside from the fact that we are not here
concerned with the certification of a bargaining representative where different considerations
come into play, the record in the instant case shows that only supervisory employees belong
to Local 303. Indeed, it is the respondent's position that the non-supervisory employees
through the U. M. W. of A. organized, out-number, and control the supervisors. Upon such
a posture of the case , the Board recently directed an election , distinguishing the Rochester and
Pittsburgh case on those very grounds See Matter of Cal.fornia Packing Company, 59 N. L. R B
941.
iz In any event , the respondent may take appropriate steps to protect its neutrality. See the
Sass case, supra, and Matter of W. S. Watkins and W. W. Watkins, 53 N L R. B. 235.
13 The findings in this paragraph are based on the uncontradicted testimony of Hicks which
the undersigned credits.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Union activities of Hicks; respondent's
opposition to the Union and the Local
As previously found, the local was chartered on February 3, 1944. Hicks and
Lauthorn, a fire boss, were the first two of the respondent's employees to attend
an organizational meeting of the Local held during the first part of February.
Both joined the Local at this meeting. Hicks took away with him a number of
union cards. Thereafter, he passed out union cards to practically all the foremen
at the respondent's mine, actively solicited their membership and discussed the
merits of the Union with them. So far as the record affirmatively shows, no other
employee of the respondent was active in soliciting for the Union or the Local. Some
of the foremen who signed the cards returned them to Hicks and he, in turn,
gave them to the financial secretary of the Local He did most of his soliciting in
the wash house, where he was observed by Ernest Slater, the respondent's assistant
general mine foreman. Several of the respondent's foremen testified that Hicks
was very active at the mine on behalf of the Local. Within a few weeks he was
instrumental in signing up in the Local about 25 foremen, who constituted prac-
tically the respondent's entire supervisory staff below the rank of assistant general
mine foreman. He attended meetings of the Local regularly and also solicited
the foremen at another mine of the respondent's called the Helena mine.
In accordance with the practice of the Local, hereinabove described, a grievance
committee was chosen by the respondent's foremen from among their number.
Elected to the committee were Hicks, Bent, and Bonds, as regular members, and
Lauthorn as alternate. On March 6, 1944, the grievance committee, consisting of
Hicks, Bent and Lauthorn, called upon Superintendent Hunter in his office, asked
for recognition as a "committee representing the foremen's union, Local 303 at
Beckley, or a grievance committee from Stotesbury mine representing the foremen
there," and told him that they wanted to cooperate with him in eliminating the
mine safety violations which were going on. A discussion followed during which
Hicks explained what it was that Hunter was being asked to recognize. Hunter
refused to commit himself and told the committee to return the next afternoon
for a definite answer. Hicks and Bent did most of the talking at this meeting.
The following afternoon Hicks and Lauthorn returned to Hunter's office where
Hunter told them that he would have nothing to do with the Local The above
findings are based on the undenied testimony of Hicks.
Between March 7 and 15, 1944, Hicks had a conversation 14 with Hunter, during
the course of which Hunter brought up the subject of the Union. Hicks credibly
testified that "after we had discussed it on that, he asked me what I expected to
derive from the Union, and then I asked him, 'Have the mine workers gotten
anything, or gained anything by it?' He said, 'They are,' and I told him we were
expecting similar benefits." Hicks then explained that the miners "had their
organization, the coal operators had their organization, and foremen in the
middle didn't have any protection of any kind." Hunter's answer was that "we
are part of the Winding Gulf Coal Corporation Association"15 and that I [Hicks]
was wasting my money by putting $24 a year into the union, and it was going
to fall through." Hicks told him that he was willing to take the "gamble." The
above findings are based on the undenied testimony of Hicks.
14 The conversation concerned a rumor that Hicks had allegedly reported a safety violation
at the respondent's mine. Hicks denied the accusation to Hunter and 2 or 3 days later was
exonerated by Hunter.
15 This name was used to designate the operators in the coal mining areas in and around
Beckley, West Virginia.
I
EASTERN GAS AND FUEL ASSOCIATES 339
Sidney Bonds, a section foreman at the respondent's mine, testified that about
March 20, 1944, he had a conversation with Hunter in the bath house about the
Union. Hunter asked Bonds if he belonged to the Union; Bonds replied in the
affirmative. Hunter then asked Bonds what he expected to gain from the Union.
When Bonds replied that he "didn't know exactly," Hunter stated that "he
couldn't see why we [the foremen] wanted to pay $38 a year in a jack-pot union,
that it wouldn't get us [the foremen] anywhere." The above findings are based on
the undenied testimony of Bonds.
About March 15, 1944, C. O. Carman became general mine foremen at the re-
spondent's mine Carman admitted that at that time Hunter told him that the mine
was 100 percent organized by the foremen's union," that Hicks was a member of
the grievance committee, and that they were to have nothing to do with the
"foremen's union" but were to treat all foremen alike. Carman did not testify that
any other name than Hicks' was mentioned. On March 25, Carman discharged
Hicks under the circumstances described below, as a result of which a work stop-
page followed. After Bonds had attended a union meeting in April, Carman spoke
to him in the mine, stating that "he had no objection to any of us [the foremen]
belonging to the union, but he didn't see why we had anything to do with it; we
[the foremen] was one of the Company's-belonged to the company, not the union"
The above findings are based on the undisputed testimony of Carman and Bonds.
After the work stoppage had been called off in April, a number of the supervisory
employees reapplied for work. According to the testimony of Crotty, a dispatcher
in charge of 16 employees, when he went to see Hunter about reporting back to
work, Hunter asked him if he belonged to the Union. Crotty replied in the affirma-
tive, whereupon Hunter wanted to know what he was going to get out of the Union.
Crotty stated that he "didn't know." Hunter then asked Crotty what kind of part
he played in the Union To Crotty's reply that he was only a member, Hunter
accused Crotty of being more than a member and of having asked the "boss" on the
night shift to join.
Construction Foreman Morgan Skiles testified that when he was refused re-
employment to his former position, he asked Hunter for his release on May 28.
Hunter asked him what he thought of "the whole situation now." Skiles countered,
"what do you mean, the whole situation?" to which Hunter replied, "Your union,
you belong to." Skiles told him that he liked it.
Hunter denied having had the conversation above stated by Skiles or having
made the above statements attributed to him by Crotty He did not deny any of
the above-related conversations to which Hicks and Bonds testified On the con-
trary, he admitted having talked to individual foremen in the manner testified to
by the Board's witnesses. The statements attributed to Hunter by Skiles and Crotty
are consistent with those admittedly made by Hunter to Hicks and Bonds. In view
of this fact, of Hunter' s admissions , and of inconsistencies in Hunter's testimony
on other respects, the undersigned rejects Hunter's denials, credits the testimony
of Hicks, Bonds, Skiles and Crotty, as above set forth, finds that Hunter made
the statements attributed to him by these witnesses and that the conversations
to which these witnesses testified occurred substantially as set forth in this section.
The undersigned also infers and finds that Hicks' prominent role in successfully
organizing the foremen at the respondent's mine came to the attention of Hunter
himself. This finding is based upon the undersigned's consideration of the follow-
ing factors: Hicks' outstanding activities on behalf of the Union; Hicks' success
in organizing the foremen within a relatively short time ; Assistant General Mine
Foreman Slater's observations of Hicks when he was soliciting in the wash house;
the fact that General Mine Foreman Taylor attributed the successful organization
696966--46-23
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the foremen to Hick's efforts, as hereinafter found; Hunter's opposition to the
Union and the Local and his proclivity to question the foremen about their union
membership and activities; the respondent's small supervisory staff; and the fact
that the wash house, where Hicks did most of his soliciting, was frequented by
Hunter.
2. Statements attributed to Stanley Taylor
James Skiles testified that about 2 weeks before the March 25 discharge of
Hicks, Stanley Taylor, the general mine foreman at that time, talked to him
at the mine about the Union ; asked him what office he intended to seek in the
Union; and stated that Hicks was "playing hell around here with the foremens,"
(sic) that he "organized Stotesbury," and that "Hicks has got to be fired" because
"he is responsible for organizing the foremen at Stotesbury." Skiles further tes-
tified that about one month after Taylor was no longer employed at the respondent's
mine, Skiles met him at Stotesbury. In the conversation which followed, Taylor
stated, according to Skiles, that he had a new job at Millburn, another mine, and
that he quit his position at the respondent's mine rather than fire Hicks for union
activities. Skiles also testified that he later tried to get Taylor to reduce the above
statements to affidavit form but that Taylor refused to do so on the ground that
the Coal Operators Association of West Virginia would then bar him from the
State.
Sidney Bonds , a section foreman in the respondent's mine, testified that he
had a conversation with Taylor at Crab Orchard after the latter had left the
respondent's mine, in which conversation Taylor said that "he didn't see why the
foremen couldn't have their union" as well as the operators and that "he would
rather resign his job as to fire Hicks over his union activities."
Taylor categorically denied having had any conversations with Skiles or Bonds
about the Union or Hicks, or having made any of the statements attributed to him
He testified that he quit the respondent's mine at Stotesbury on March 15, 1944,
because of a difference of opinion with Superintendent Hunter in connection
with the running of the mine, whereupon he was offered a transfer to the re-
spondent's Keystone mine, which he accepted ; that he commenced working at Key-
stone about 5 days later, worked there for about 12 days and then left the
respondent's employ to accept a better job at Millburn on April 18; that while he
(Taylor) was so employed, Skiles came to him early in June and asked him to
make a written statement to the effect that he had refused to fire Hicks for his
union activities, which Taylor refused to do because it was not true; that several
weeks later when he went to Hunter's office to appear as a witness in a State Mine
Department hearing, he voluntarily told Hunter about Skiles' visit and its pur-
pose; that Hunter asked him to sign an affidavit to that effect; and that he
thereupon executed two affidavits, one of which was written out for him by
Hunter.
L. C. Campbell, R. S. Long, and Hunter, the respondent's vice president, general
superintendent, and superintendent at the Stotesbury mine, respectively, testified
that the Stotesbury No. 8 mine had been losing money for a long period of time ;
that for about a year they had been discussing the desirability of replacing Taylor
but delayed acting on the matter because Hunter wanted to have further oppor-
tunity to work out the problem with Taylor; that in about February 1944, before the
commencement of union activities at the respondent's mine, Hunter and Long
talked to Campbell about the removal of Taylor; and that on March 15. Taylor
was transferred to the respondent 's Keystone mine as a safety man for economic
reasons.
EASTERN GAS AND FUEL ASSOCIATES 341
Taylor was not a very straightforward and candid witness; on cross-examination
he became evasiye, confused, and contradicted himself several times particularly
with respect to the execution and notarization of his affidavits. Moreover, the hear-
ing in Hunter's office at which he allegedly told Hunter about Skiles' visit to him
at Millburn appears to have occurred before Taylor was even employed there
Furthermore, Hunter, whom the undersigned has previously discredited, was not
questioned with respect to the matters to which Taylor testified On the other hand,
Taylor's testimony corroborates that of Skiles and Bonds in some respects. Thus,
he admitted quitting the respondent's mine at Stotesbury; that he was working
at Millburn on the occasions to which Skiles and Bonds testified ; and that Skiles
did visit him at Millburn and sought to get him to make a written statement to
the effect that he had refused to fire Hicks for union activities. Nor did Taylor
deny that he was aware of Hicks' union membership and activities. Although
Skiles, who was no longer in the respondent's employ at the time of the hearing,
appeared to be an overzealous witness, he was corroborated with respect to the
second conversation by Bonds, a forthright and credible witness 16 who was still
in the respondent's employ at the time of the hearing and whose testimony in other
respects, hereinabove set forth, was either admitted or undenied by the respondent.
However, there are certain improbabilities inherent in the testimony of Skiles
that Taylor told him Hicks had to be fired for organizing the foremen at the
respondent's mine Taylor and Skiles were not intimate. According to Skiles, the
only time Taylor ever spoke to him was with reference to his work. Had such a
statement been' made, it would appear likely that Skiles would have informed
Hicks of it. Yet Skiles did not do so. Moreover, the statement attributed to Taylor
is. inconsistent with his alleged later conduct and statements that he didn't see
why the foremen couldn't have their own union, and that he quit rather than
fire Hicks for union activities Under all the circumstances the undersigned con-
siders it highly improbable that the general mine foreman would make such an
incriminating statement to a subordinate to whom he had never talked on matters
unconnected with the work Accordingly, the undersigned finds that a conversation
about the Union took place between Taylor and Skiles at the respondent' s mine ;
that Taylor queried Skiles relative to what office he would seek in the Union ;
and that, while Taylor attributed the successful organization of the foremen to
Hicks' efforts, he did not categorically state that Hicks had to be fired for organ-
izing the foremen at Stotesbury.
With respect to the other statements attributed to Taylor by Skiles, the under-
signed has already pointed out the respects in which they are corroborated by
Taylor and by Bonds, a credible witness In this connection the undersigned con-
siders its significant that the respondent' s witnesses did not corroborate Taylor's
testimony that he quit the respondent's mine before he was offered a transfer to
the Keystone mine Upon consideration of all the testimony and the entire record
the undersigned believes and finds that Taylor was transferred to the respondent's
Keystone Mine because of dissatisfaction with the manner in which he was oper-
ating the mine ; that, nevertheless, Taylor did make the other statements attributed
to him by Skiles and Bonds, including the one to the effect that he had quit rather
than fire Hicks for union activities; and that such statements were made by him as
a face-saving device to cover up the fact that he had been removed for unsatisfac-
tory operation of the Stotesbury mine.
11 In its brief to the Trial Examiner, the respondent concedes that "the testimony of Bonds
is clear and unequivocal that such a conversation took place."
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Events immediately preceding the discharge of Hicks
In March 1944, Hicks was in charge of a section known as "7'right off 2 main."
This section had been reopened about a month previously, following a shut-down
for rock work, and was in poor condition due to "bad roof," water, and low coal.
For these reasons the men did not like to work in this section, and the crew
assigned to Hicks was an irregular one, changing practically every day and
consisting of a very poor class of laborers. About March 10, Hicks complained
to Hunter about the conditions of the section and sought advice with respect to
the shooting of coal17 so as to get more production. Hunter replied that if
anyone knew how to shoot coal, Hicks did. Hunter then offered some advice in this
connection ; whereupon the machine operator, who was also present, stated that
they had been doing it in that manner. Hicks then informed Hunter that his
production could not increase until he had a better class of labor, to which Hunter
replied that he would have to do the best he could with what he had Nothing
was done to correct the conditions of the section concerning which Hicks had
complained.18
On March 15, Carman became general mine foreman, replacing Taylor who
had occupied that position the preceding 2 years. Upon assuming his duties,
Carman proceeded to make a general inspection of the mine, first with Taylor
and then by himself. During the course of this inspection, Carman visited Hicks'
section three times in the week of Hicks' discharge, which took place on Satur-
day, March 25.19 During his first visit on Monday of that week he told Hicks
merely that the faces should be "timber standard" On his second visit on Wednes-
day, he advised the laborers under Hicks' jurisdiction, who were in the process
of a cutting operation, to bug-dust the cut. As Hicks came over, Carman
"greeted" him and asked him how he was getting along. Hicks asked for advice
with respect to the shooting of coal so as to increase his production Carman told
Hicks that he "thought" bug-dusting the cut would be very helpful and that, in
view of the fact that Carman had not been there so long, he would first study
some of the other sections, think it over, and let Hicks know more about it.
During the third inspection, which probably occurred on Friday afternoon,
Carman found Hicks with four of his men engaged in setting up a face con-
veyor in room No. 15. He helped them for a while and then went to another
part of the section known as room No 16, where he found the men "punching"
out a stump of coal without any protection having been left "to prevent a pillar"
fall from riding over and covering up the equipment." According to Carman,
there was no timbering for about 14 feet. Carman had the men correct this
condition "on the spot." He then told the men to remove the coal which had
already been cut but that, if the roof gave any indication of falling, not even to
remove the coal but merely to move the equipment. As he was leaving that room,
he noticed that it would not be safe to set the equipment in the "break through"20
because if the back "gob" got to "working" before the men had time to remove
the coal, the equipment would be covered up. He then met Hicks and told
him about the men "pushing out that stump of coal" but he said nothing about
14 This is the process of breaking down the coal by placing some explosive into a hole drilled
in the coal by a machine.
19 The findings in this paragraph are based on the uncontradicted testimony of Hicks, which
the undersigned credits.
19 While Hicks testified only to two visits during this week, the undersigned believes the
probability to be that three visits were made.
29 This is an opening between two rooms for ventilating purposes and is required by the
State Department of Mines.
EASTERN GAS AND FUEL ASSOCIATES 343
there having been a space of 14 feet without timber, or about any danger because
of the roof condition, or the manner in which the men were mining out the pillar,
or about Carman's instructions to the men 21 When Hicks asked Carman what
he wanted done with the place, Carman stated that he "would give the night
foreman instructions what to do."
Carman later instructed Kirkham, the night foreman, and Flannagan, the section
foreman who followed Hicks on the night shift, in the presence of Ernest Slater,
who was Carman's assistant, to remove the coal which had already been cut,
if it was safe to do so, and then to move the equipment down to the next block
of coal and start a new pocket. Carman admitted that he did not inform Hicks
of these instructions or tell anyone else to inform him of them. He also admitted
that he did not visit Hicks' section again until after his discharge. That night
Flannagan moved the equipment to a new pocket
When Hicks went to work on Saturday morning, March 25, he examined the
reports of the night foreman and fire boss and discovered that the equipment had
been moved He thereupon discussed the situation with his superior, Assistant
General Mine Foreman Slater, who told him to "go back and use [his] own
judgment as to what to do there.", Hicks thereupon went into the mine, examined
the situation, and decided that the most "logical thing to do" was to move the
equipment back so as to get out the coal which had been cut. Carman admittedly
did not find out that the equipment had been moved back until after Hicks'
discharge.22
4. The discharge of Hicks
Carman admitted that on Saturday morning, March 25, 1944, he saw Hicks
before the commencement of his shift at 6:30 but said nothing to him. That after-
noon, Sidney Bonds, a section foreman, was sitting in the mine office when
Carman gave his assistant, Ernest Slater, a discharge slip, telling him to give it
to the person whose name was on the slip if that person came out of the mine
before Carman got back. Slater then told Bonds that Hicks was the person who
was being discharged, adding, "that gets one of your brothers." When Bonds went
back into the mine, Hicks asked him "how everything was going." Bonds replied,
not "so hot * * * you're going to get fired whenever you go out." The above
findings are based on the undisputed and credible testimony of Hicks and Bonds.
At the close of his shift about 3:30 that afternoon, Hicks was in the mine
office making out his report. Carman called Hicks out of the office and told him
that he (Carman) was making some changes and was letting Hicks go. Hicks
replied that he had been expecting it, referring to the warning which he had received
from Bonds.23
21 Hicks had visited room No. 16, known as the "pillar room," the first thing that morning
and after giving the men their working instructions, spent the rest of his time setting up the
face conveyor unit at a point about 200 to 250 feet away , where his view of the men in the
"pillar room" was obstructed by some coal.
22 The remaining findings in this section are based upon a consideration and reconciliation
of the testimony of Carman, Flannagan , and Hicks, which does not conflict in material re-
spects Slater did not testify nor was any showing made that he was unavailable.
23 The findings as to what was said in this conversation are based upon the testimony of
Hicks and Carman. There is no material variance in their respective versions.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hicks then went to the wash house and, after discussing his discharge with the
other foremen there, went back to see Carman. He found him in the superintendent's
office with Hunter and Safety Inspector Basham. Hicks testified that he asked
Carman why he was discharged; that Carman said, your "work was unsatisfactory";
that Hicks then asked what was unsatisfactory about his work, to which Carman
"kind of looked at Mr. Hunter and Mr. Basham" and said, "the work is just
unsatisfactory, that's all"; that Hicks then asked whether his production was
"low," to which Carman replied, "that was partially it and partially a poor organ-
ization on the section." Carman testified that he told Hicks the reason for his
discharge was "unsatisfactory work" ; that Hicks wanted to know if there was
any other reason, whereupon Carman stated, " * * * `there is a number of reasons;
one, failing to handle the men,' and that about ended it, the conversation." He
denied telling Hicks that "low production" was one of the reasons for his
discharge.
It thus appears that the only material respect in which Hick's version differs
from Carman's is in connection with whether Carman also gave low production
as a reason for the discharge. Hunter corroborated Carman with respect to his
reference to Hicks' unsatisfactory work but did not deny that low production was
also given as a reason. Basham did not testify, and it was not shown that he was
unavailable. Carman did not impress the undersigned as a very candid witness
In view of the foregoing facts, Carman's admission that he stated "there is a
number of reasons" for the discharge, and the further fact that Carman had been
transferred to the respondent's mine because it had been losing money, the under-
signed believes it more probable, and credits Hicks' testimony, that low production
was given as an additional reason for the discharge.24
It is undisputed that neither Carman nor any other superior of Hicks had ever
spoken to him about his alleged failure to handle the men or about his production.
Nor did the respondent at the hearing offer any evidence to show that Hicks'
production was low or prove that he had failed to handle his men. It is also
'4 The respondent also adduced testimony to the effect that sometime between the discharge
of Hicks on Saturday, March 25, and the following Monday, there was a roof fall in room
No 16, which resulted in damaging some of the equipment which Hicks had rearranged in
that room. Counsel for the respondent conceded at the hearing that this "did not, in any way,
enter into the reasons for his discharge," but contended that it "substantiated" its position
that Hicks "was not a good section foreman because a good section foreman wouldn't have"
moved back the equipment in view of the poor roof condition. As previously found, Carman
had refused to give Hicks any instructions in this connection ; nor did Carman or any other
representative of the respondent inform Hicks of Carman's instructions to the night foreman
to move the equipment from the point where it was found. Carman testified that Hicks' action
in moving back the equipment constituted an error in judgment, but admitted that other
section foremen had committed the same error in judgment resulting in a roof fall which
also damaged equipment, and that they were not discharged for unsatisfactory work. In the
opinion of the undersigned no great significance can be attached to the entire incident, since
admittedly it was not known to Hicks' superiors at the time of the discharge. In any event, in
accordance with the undersigned's previous findings, it appears that in using his own judgment,
Hicks was acting upon the advice of his immediate superior, Assistant Mine Foreman Slater,
who was well aware of Carman's prior instructions but made no mention of them to Hicks.
Finally, under all the circumstances, the undersigned does not believe that Hicks' single error
in judgment rendered him such a poor section foreman in the eyes of the respondent as to
merit discharge or that it substantiates the respondent's contention that his work was un-
satisfactory because of failure to handle the men or because of low production, the only
reasons advanced to Hicks for his discharge.
EASTERN GAS AND FUEL ASSOCIATES 345
undisputed that at the time of Hicks' discharge about 20 section foremen were
employed at the respondent's mine, and that Hicks was the oldest one in point
of seniority. Hunter admitted that at the time of Hicks' discharge it was decided
to replace him with Harper, an employee who had been hired as an extra section
foreman 3 days earlier but for whom no section was then available. Hunter further
testified that it was the respondent's practice to employ an extra section foreman
"off and on all the time" and to place him in a "bull gang" until a section became
available for him ; that Flannagan was the previous extra section foreman ; and that
Harper was hired to replace Flannagan. However, according to Flannagan's un-
contradicted testimony, which the undersigned credits, he had been section fore-
man of Hicks' section on the shift following Hicks for about 2 months prior to
Hicks' discharge. It thus appears that for a period of at least 2 months prior to
Hicks' discharge, there was no extra section foreman in the respondent's employ.
About the middle of April, at the termination of the work stoppage resulting
from Hicks' discharge, Hicks went to see Carman at the mine office and told
him that he had been ordered to report back to work. In reply to Carman's inquiry
as to who had given him such orders, Hicks stated that McAlpine, the Union's
president, "had given me orders to report back for work and that he [McAlpine]
had had orders from Washington." Carman retorted that if McAlpine told him
to report to work, then let McAlpine pay him. When Carman added that Hicks
had been replaced, Hicks "asked him about common labor." Carman told Hicks
that he would have to see Hunter before Carman would talk to him about it
Hicks then went to see Hunter who told him that he had been replaced.
Carman did not deny the above conversation related by Hicks and credited by
the undersigned. Hunter denied that Hicks ever requested his job back but was
not prepared to state at the hearing whether he would have taken him back if
he had applied. The undersigned has already found Hunter to be a witness un-
worthy of belief. Moreover, in view of Hicks' undisputed testimony that Carman
told him to see Hunter about returning to work, the undersigned credits the above
testimony of Hicks relative to his conversation with Hunter.
In a further attempt to show that Hicks' work was unsatisfactory, Hunter testified that on
March 10, 1944, he accompanied Harry Sanford, Federal Inspector of the United States
Bureau of Mines, and Safety Inspector Basham in an examination of Hicks' section during
the course of a mine inspection and that Sanford orally stated to Hunter that it was the worst
section in the mine. Sanford and Basham were not called by the respondent to corroborate
Hunter, nor was it shown that they were unavailable. Hunter never informed Hicks of this
alleged report, nor did he ever criticize or reprimand him in any respect Hunter admitted
that a written report on the inspection of the respondent's mine was submitted to him by
Sanford When shown a copy of this report and asked by counsel for the Board whether any
mention therein was made of Hicks' section, Hunter replied in the negative and added that
no specific section was mentioned Later, he admitted that some sections were mentioned
An examination of this report, which is in evidence, shows that no mention is made of Hicks'
section in any connection but that a number of other sections are specifically reported to be
in bad condition, e. g , in one section the roof was unsupported by timber for a total distance
of 25 feet, in another section the timbering was poor, in still another section there was im-
proper care of certain equipment, and in a number of sections there was boor housekeeping
It is improbable that a United States Inspector of Mines would orally condemn Hicks'
section as the worst in the mine, and yet say nothing about it in his official written report
while mentioning the condition of other sections, and that Hunter would say nothing about
it to Hicks. Under all the circumstances, and upon the entire record, the undersigned does not
credit Hunter and finds that Sanford did not orally state that Hicks' section was the worst in
the mine.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Conclusions
Hicks had rendered satisfactory service to the respondent for approximately
10 years, the last 5 as a section foreman.25 He was about the first one of the re-
spondent's employees to show an interest in the Union. Upon joining the Local
early in February 1944, he immediately became an ardent union protagonist, was
the only employee who actively solicited memberships among the foremen employed
not only at the respondent's Stotesbury No. 8 mine but also at its Helena mine,
and frequently discussed the merits of the Union with his fellow workers. Within
a short time he succeeded in organizing the entire supervisory staff at the re-
spondent's mine below the rank of assistant general mine foreman Superintendent
Hunter, General Mine Foreman Taylor, and Assistant General Mine Foreman
Slater were aware of Hicks' prominent role in organizing the mine During the
discussion at the grievance committee meeting with Hunter on March 6, Hicks,
one of the two committee members who did most of the talking, explained why
they were seeking recognition. Although Hunter testified that he had been
advised earlier by General Superintendent Long of the respondent's policy not
to recognize or deal with the foremen's union, he offered no explanation for his
failure to give the committee a definite answer to that effect at that time instead
of telling them to return the following day. Hicks was one of the two committee-
men who returned the following day to be informed by Hunter that the respondent
would have no dealings with the Union or the Local.
That Hunter was opposed to a union of foremen is apparent from, among other
things, his effort to ascertain the union membership and activities of some of the
supervisors and his attempts to discourage them from adhering to the Local of
the Union by disparaging it, by belittling its effectiveness in securing any benefits
for them, and by identifying the foremen with management. That he resented
Hicks' activities in organizing the foremen is also apparent from his accusation
against Crotty that he (Crotty) was not a mere member but that he had solicited
the "boss" on the night shift. In a conversation with Hicks, held shortly before
March 15, Hunter voluntarily injected the subject of the Union, sought to get him
to abandon the Union and the Local by pointing to the money which he was
"wasting," by identifying him with management, and by warning that the Union
would "fall through." Refusing to heed Hunter's plea and warning, Hicks told
Hunter that he would take his chances on the Union.
Immediately upon Carman's assumption of his duties as general mine foreman
on March 16, Hunter informed him that the foremen were organizing into a fore-
men's union, advised him of the respondent's policy not to recognize or deal
with such a union, and mentioned that Hicks was a committeeman. It does not
appear that the name of any other committeman was mentioned, and no explana-
tion was offered at the hearing as to why Hicks' name was singled out. In line
25 While Hicks was discharged as a section foreman in December 1941 , the undersigned
finds from the undenied testimony of Hicks and the circumstances surrounding his discharge
and recall that he was unjustly dismissed because of conditions for which the night shift was
responsible In any event, he was recalled by the respondent within 3 months and uncon-
ditionally restored to his position of section foreman, in which capacity he continued to serve
without criticism or reprimand of any sort for the next 2 years. Moreover , other witnesses
testified to the satisfactory nature of Hicks' work. Thus, Section Foreman Bonds credibly
testified that he was section foreman for 2 years on the shift following Hicks and that, from
his observation of the condition of the section, Hicks was a good foreman . Electrical Foreman
McQuade, who was not a member of the Local at the time of the hearing , credibly testified
to the good care which Hicks took of the mining equipment during the 4 or 5 years in which
McQuade was electrical foreman. The care of the mining equipment is part of the section
foreman's job. Even Taylor, the former general mine foreman under whom Hicks served for
2 years prior to March 15, 1944, testified that Hicks' work as section foreman was "fair."
EASTERN GAS AND FUEL ASSOCIATES 347
with the respondent's announced policy, Carman was also opposed to the Union
and the Local as appears from his later attempt to discourage Bond's adherence
to them. On March 22, Harper was hired as an extra section foreman to fill a
vacancy which had existed since before the advent of the Local in the respondent's
mine. No explanation was offered for the respondent's decision to fill the vacancy
at that time. Three days later , Hicks was discharged without any prior warning
by the respondent ; was offered an explanation only upon Hicks' insistence ; was
then told that "there is a number of reasons" for the discharge, among them being
low production and failure to handle the men, neither of which is supported in
the record; and was replaced by the new extra section foreman26
It is the respondent's position that Hicks was discharged for incompetency.
To support this contention the respondent relies on the testimony of Carman as to
the condition of Hicks' section during the three visits made in the week of March
18 Carman admitted that the conditions with which he found fault were all cor-
rected "on the spot." During his first visit he merely told Hicks that the faces
should be "timber standard." During Carman's second visit, he found that the
laborers under Hicks' jurisdiction were not bug-dusting the cuts. Nevertheless,
when he later met Hicks, Carman merely "greeted" him and asked him how he
was getting along. He made no mention of the failure of the men to bug-dust
the cut It was only in response to Hicks' request for advice on shooting the coal
that Carman stated he "thought" bug-dusting would be helpful but that he would
study the other sections and let Hicks know more about it later. No reprimand
or criticism of any kind was uttered. Carman's conduct was hardly consistent will,
that of a man who was so dissatisfied with his subordinate's work as to d1
charge him 3 days later Similarly, during the third visit Carman did not even
inform Hicks about the space of 14 feet without timbering, let alone reprimand
or criticize him for it Nor did he mention anything about danger to the men
or equipment because of the roof condition,27 or give him any instructions in that
regard. The respondent's conduct in this respect is more consistent with a position
that such matters were not considered serious enough to merit discharge 2s
Neither on this third visit, nor when Carman saw Hicks as he was going on his
shift the following morning, did Carman give Hicks any indication that he was
to be discharged because of the condition in which Carman had found his section
on these three visits. On the other hand, the respondent knew that Hicks was in
charge of one of the most difficult sections, that he had a poor class of laborers
working under him, that his crew was constantly changing, and that on March 10
he had complained of these matters to Superintendent Hunter who advised him
to do the best he could under the circumstances. Concededly, also the respondent
regarded section foremen as valuable employees, and the labor market in that
respect was scarce. It was also the respondent's admitted practice in employing
section foremen to give weight to previous experience.
In view of the foregoing considerations, the undersigned believes and finds that,
absent his union membership and activities, Hicks, the oldest section foreman in
point of seniority, would not have been charged with incompetency for the con-
ditions of his section during Carman's three visits and summarily discharged there-
26 At the time of the hearing the remaining active committee members were no longer
employed at the respondent's mine.
27 Flatinagan, who had been following Hicks as section foreman on the night shift for
about 2 months , testified that he did not know there was a crack in the roof until Carman
told him about it Fiiday afternoon, March 24.
21 That similar conditions existed in other sections of the mine appears from the official
repoi t on the inspection made by the United States Bureau of Mines earlier in March. For
example , it is reported that in one section there was a space of 25 feet without timbering.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for without prior warning, or regard for his long satisfactory service record, in
favor of a man who had been in the respondent's employ only 3 days and who
the respondent had no reason to believe would do any better, if as well. The under-
signed believes and finds that Hicks' union membership and activities constituted
the "number of reasons" for the discharge which Carman admittedly told Hicks
but left unexplained.
Upon the entire record, the undersigned finds that the respondent discharged
Hicks and thereafter refused to reinstate him because of his membership and
activity on behalf of the Local, thereby discouraging membership in the Union and
the Local and interfering with, restraining, and coercing its employees in the
exercise of their rights guaranteed in Section 7 of the Act. The undersigned finds
further that by the statements of Hunter, Carman, and Taylor in questioning
employees concerning their union membership and activities, in disparaging the
usefulness and effectiveness of the Local and the Union, and in discouraging them
from continuing to adhere to the Local, and by the totality of such conduct, the
respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.29
IV. THE EFFECT OF THE 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 described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V. THE REMEDY
Since it has been found that the respondent engaged in certain unfair labor
practices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the respondent discriminatorily discharged James Hicks
on March 25, 1944, and thereafter refused to reinstate him. It will be recommended
that Hicks be offered immediate and full reinstatement to the former or sub-
stantially equivalent position occupied by him at the respondent's mine without
prejudice to his seniority and other rights and privileges, and that he be made
whole for any loss of pay he may have suffered by reason of the respondent's
discrimination against him, by payment to him of a sum of money equal to the
amount which he normally would have earned as wages during the period from
March 25, 1944, the date of the discrimination against him, to the date of the
respondent's offer of reinstatement, less his net earnings during said period 30
29 The undersigned finds that the record does not support the allegations in the complaint
that the respondent engaged in vilifying , calumniating and maligning the Union and its leaders
and organizers ; in threatening employees with discharge or other reprisals if they became or
remained members of the Union ; and in offering to employees preferential treatment as to wage
increases , job security and working conditions if they refrained from joining or assisting the
Union, or engaging in other concerted activities relative to self-organization . The undersigned
will accordingly recommend that these allegations be dismissed.
ao By "net earnings" is meant earnings less expenses , such as for transportation , room, and
board, incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent , which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett
Lumber Company , 8 N. L. R . B. 440. Monies received for work performed upon Federal , State,
county, municipal , or other work-relief projects shall be considered as earnings . See Republic
Steel Corporation v. N. L. R. B., 311 U. S. 7.
EASTERN GAS AND FUEL ASSOCIATES 349
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. United Clerical, Technical and Supervisory Employees of the Mining Industry,
Division of District 50, United Mine Workers of America, and Local 303 are
labor organizations, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of James
Hicks, thereby discouraging membership in United Clerical, Technical and Super-
visory Employees of the Mining Industry, Division of District 50, United Mine
Workers of America, and Local 303, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not engaged in unfair labor practices within the meaning
of Section 8 (1) of the Act insofar as the complaint alleges that it engaged in unfair
labor practices by vilifying, calumniating , and maligning the Union and its leaders
and organizers; by threatening employees with discharge or other reprisals if they
became or remained members of the Union, and by offering to employees prefer-
ential treatment as to wage increases , job security and working conditions if they
refrained from joining or assisting the Union, or engaging in other concerted
activities relative to self-organization.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the respondent,
Eastern Gas and Fuel Associates, Beckley, West Virginia, and its officers, agents,
successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in United, Clerical, Technical and Super-
visory Employees of the Mining Industry, Division of District 50, United Mine
Workers of America, or Local 303, or any other labor organization of its employees,
by discharging and refusing to reinstate any of its employees, or by discriminating
in any other manner in regard to their hire or tenure of employment, or any term
or conditions of their employment;
(b) In any other manner interfering with, restraining , or coercing its
employees in the exercise of their right to self-organization, to form labor- organiza-
tions, to join or assist United Clerical, Technical and Supervisory Employees of
the Mining Industry, Division of District 50, United Mine Workers of America,
Local 303, or any other labor organization, and to engage in concerted activities,
for the purposes of collective bargaining or other mutual aid or protection as guar-
anteed in Section 7 of the Act.
2. Take the following affirmative, action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer James Hicks immediate and full reinstatement to his former or
a substantially equivalent position, without prejudice to his seniority or other rights
and privileges;
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole fames Hicks for any loss of pay he may have suffered by
reason of the respondent 's discrimination against him , by payment to him of a sum
of money equal to the amount which he normally would have earned as wages
during the period from the date of his discharge to the date of the respondent's
offer of reinstatement, less his net earnings during such period;
(c) Post at its Stotesbury No. 8 mine, at Stotesbury, West Virginia, copies
of the notice attached to the Intermediate Report herein, marked "Appendix A."
Copies of said notice, to be furnished by the Regional Director of the Ninth
Region, shall, after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained by it for sixty
(60) consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
the respondent to insure that said notices are not altered, defaced, or covered by
any other material ; -
(d) Notify the Regional Director for the Ninth Region in writing, within
ten (10) days from the receipt of this Intermediate Report, what steps the
respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent, to take the action
aforesaid.
It is further recommended that the complaint, insofar as it alleges that the
respondent engaged in unfair labor practices by vilifying, calumniating, and malign-
ing the Union and its leaders and organizers, by threatening employees with dis-
charge or other reprisals if they became or remained members of the Union,
and by offering to employees preferential treatment as to wage increases, job
security and working conditions if they refrained from joining or assisting the
Union, or engaging in other concerted activities relative to self-organization, be
dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 26,
1943, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board, Rocham-
beau Building, Washington, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all motions or objections)
as he relies upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or brief,
the party or counsel for the Board filing the same shall serve a copy thereof upon
each of the parties and shall file a copy with the Regional Director. As further
provided in said Section 33, should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board within
ten (10) days from the date of the order transferring the case to the Board.
LOUIS LIBBIN,
Trial Examiner.
Dated February 13, 1945.
EASTERN GAS AND FUEL ASSOCIATES
APPENDIX A
NOTICE To ALL EMPLOYEES
351
Pursuant to recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations,
to join or assist United Clerical, Technical and Supervisory Employees of the
Mining Industry, Division of District 50, United Mine Workers of America, or
any other labor organization , 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
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
any seniority or other rights and privileges previously enjoyed, and to make
them whole for any loss of pay suffered as a result of the discrimination.
James Hicks
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any such labor
organization.
EASTERN GAS AND FUEL ASSOCIATES,
Employer.
By .. ....... ..............................
(Representative) (Title)
Dated.........
NOTE: Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge frrm the armed forces.
This notice must remain posted for 60 days from th date hereof, and must not
be altered, defaced, or covered by any other material.