Elk Horn Coal Corp.

National Labor Relations Board - Board Decisions

Dec 27, 1945

64 N.L.R.B. 1563 (N.L.R.B. 1945)

In the Matter Of HOWARD N. Ex\E-NsoN, W. W. GOLDSMITH AND
J. J. MooRE, ANCII LARY RECEIVERS FOR THE EI,K HORN COAL
CORPORAT1oN and UNITED CONSTRUCTION WORKERS, AFFILLATED WITH
UNITED MINE WORKERS OF AMERICA
Case No. 9-R-Ii'i3.Decided December 27,.1945
Mr. J. W. Howard, of Prestonsburg, Ky., for the Company.
Mr. Thomas Davis, of Norton, Va., and Mr. J. B. Boggs, of Jenkins,
Ky., for the Union.
Mr. Nathan Saks. of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Construction
Workers, affiliated with United )line Workers of America, herein
called the Union, alleging that a question affecting commerce had
arisen concerning the representation of employees of Howard N.
Eavenson, W. W. Goldsmith and J. J. Moore, Ancillary Receivers for
the Elk Horn Coal Corporation, Wayland and Fleming, Kentucky,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon clue notice before Benjamin E.
Cook, Trial Examiner. The hearing was held at Prestonsburg, Ken-
tucky, on July 17, 1945. The Company and the Union appeared and
participated.' All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Trial Examiner's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
At a prior hearing held upon the original petition,- the Elk Horn
Coal Corporation,3 herein called the Corporation, filed a special ap-
i Southern Coal Produccis Association, a representative for collective bargaining pur-
poses of various district associations, including the Big Sandy-Elkhorn Coal Operators'
Association of which the Company is a member, was served with notice of the hearing but
did not appear of participate therein.
I This hearing was held on June 28, 1945, at whitesburg, Kentucky, before the same
Trial Examiner
"The Elk Horn Coal Corporation was named in the original petition
64 N L R. B , No. 256.
1563
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pearance, in which it moved for dismissal of the proceedings on the
grounds that: (1) Since its business was being operated by ancillary
receivers, the receivers were necessary parties to a determination of
the case, and should, accordingly, have been served with notice; and
(2) the Board was without jurisdiction because of the failure of the
Union to obtain permission from the receivership court to institute
the proceeding.4 However, with the consent of all parties, the hear-
ing was postponed until July 17, 1945, and on July 9, 1945, the Union
filed an amended petition naming the receivers, and the receivers were
on that date sea•ved with notice of the hearing to be held on July 17,
1945. At the hearing on the amended petition, the Company filed a
special appearance in which it incorporated by reference the allega-
tions and the motion to dismiss made by the Corporation in its special
appearance at the original hearing. The Trial Examiner reserved
for the Board ruling on both motions to dismiss.
Inasmuch as the amended petition named the receivers, and the
receivers were duly served with notice of the hearing upon that peti-
tion, we are of the opinion that any and all procedural- defects that
may have existed were cured thereby. Accordingly, the Company's
motion to dismiss the petition on the ground that it did not name the
proper parties, and that there was improper service, is hereby denied .5
We also find no merit to the Company's contention that consent of
the court which appointed the receivers was a necessary prerequisite
to our entertaining the petition. We have heretofore held, as have
the courts, that the exercise of the Board's jurisdiction does not de-
pend upon the leave of a State receivership court." Accordingly, we
deny the motion to dismiss the petition on that ground.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Elk Horn Coal Corporation, a West Virginia corporation with its
principal office in Charleston, West Virginia, and sub-offices in Way-
land and Fleming, Kentucky, is engaged in the operation of coal mines
located in the State of Kentucky. Since 1940 the Corporation's busi-
ness has been conducted under a receivership. Along with its mining
operations and primarily for the convenience of its mining employees,
the Corporation has for many years operated general merchandise
4 The dismissal of the petition was urged on the further ground that an existing contract
between the Company and the United Mine Workers of America served as a bar to the
proceeding. The contractual bar issue is treated in Section III, infra.
See Matter of Hoosier Veneer Company, 21 N. L it. B. 907.
See N. L It B. v TV. C. Bachelder, 120 F. (2d) 574, 576 (C C. A. 7), enforcing Matter
of Hoosier Veneer Company, supra.
ELK HORN COAL CORPORATION 1565
stores and other facilities,' the employees of which are solely concerned
in this proceeding. In the operation of its mines, the Company em-
ploys 1,188 employees, and in operating its stores and other mercantile
facilities, the Company employs approximately 59 employees. All
the mines and mercantile facilities presently operated by the Com-
pany are located in aild around Wayland and Fleming, Kentucky,
which towns are about 90 miles apart." During the year 1944, the
Company mined and sold 1,470,000 tons of coal, of which 94.54 percent
represented shipments to points outside the State of Kentucky. Dur-
ing the same period, the Company purchased merchandise for resale
in its mercantile facilities valued at approximately $790,000, of which
approximately $350,000 worth was obtained from sources outside the
State.
The Company concedes that it is engaged in commerce within the
meaning of the Act so far as it is engaged in the production and sale
of coal. The Company contends, however, that it is not engaged
in commerce within the meaning of the Act with respect to the opera-
tions of its mercantile and recreational activities, urging that such
activities are separate and distinct from the mining operations, and
confined to intrastate business; that while originally the mining em-
ployees were wholly dependent on the Company's mercantile and
recreational facilities because the mines were in isolated locations, the
natural growth of the area and improved roads now enable its em-
ployees to live and trade at considerable distances from the mines;
that, as a result, the mining employees are no longer dependent upon
the Company's facilities, and do much of their trading with the Com-
pany's competitors in the area; and that, while originally the Com-
pany's facilities were operated for the sole purpose of servicing its
mining employees, they now service the general public.
While it appears that, as a result of the natural growth of the
communities herein concerned, stores and other facilities similar to
those maintained by the Company have arisen to offer their services in
competition with those furnished by the Company, the record discloses
that a large percentage of the inhabitants of both communities con-
cerned are employees of the Company who depend to a substantial
degree on the merchandising operations of the Company for their
daily purchases. As an aid to such purchases by its employees, the
Company follows the practice of issuing at its local mining offices
upon request of its mining employees, in anticipation of wages to be
earned by such employees, advances of credit in the form of scrip,
° Meat markets , soda fountains , gas stations , and clubhouses
e The Company also owns and maintains 983 dwellings in this at Pa for the use of both
its mining and mercantile employees . Approximately 50 percent of its employees occupy
these company -owned houses
a
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which may be redeemed in merchandise at the Company's stores.9
Moreover, the administrative structure of the Company also illus-
trates a close interrelationship between the Company's stores and its
mining operations. In the latter connection, the record indicates that
the cash receipts of the stores and the recreational facilities are turned
over to the local auditors attached to the mine offices of the Company;
that those auditors audit the books of the clubhouses; and that the
mercantile employees receive their pay, and are issued scrip, from the
local mining offices.
In view of the foregoing, we find, contrary to the contention of the
Company, that the Company's stores and recreational facilities are
a part of its integrated business enterprise, and that, in the operation
of such facilities, the Company is engaged in commerce within the
meaning of the Act.10
II. TILE ORGANIZATION INVOLVED
United Construction Workers, affiliated with the United Mine
Workers of America , is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated March 19, 1945, the Union informed the Company
that it had been designated by the employees involved herein as their
bargaining agent, and requested a meeting with the Company for the
purpose of negotiating a contract. The record fails to disclose any
reply to the Union's letter. However, at the hearing, the Company
"reserved" its position on the question of recognition of the Union.
As indicated above, the Company moves for dismissal of the peti-
tion on the ground that an existing contract between United Mine
Workers of America 11 and an employer association,12 of which the
Company is a member, is a bar to the proceeding. It asserts that
because the contract, which covers the mine workers of the member
companies of the Association, expressly excludes from its coverage
the employees here involved, there arises in effect an agreement not
to organize or represent the employees involved in the present pro-
ceeding, and that this agreement is binding not only upon the UMW
but also upon the Union by reason of its affiliation with the UMW.
The contract contains no specific provision by which the UMW has
undertaken not to represent these employees, and we are unable to
0 The record indicates that the Company's employees receive approximately 50 percent
of their wages in scrip
10 See Matter of Lillybroole Coal Company, 60 N. L. R B . 31 ; Matter of Pocahontas Fuel
Companlt , Incorporated, 60 N L R B 41 , and Matter of Consolidation Coal Company,
n.; A I, R I: 169
ileocon called the UMW.
1;og Sand-Elkhorn Coal Operators ' Association , herein called the Association.
ELK HORN COAL CORPORATION 1567
infer any such commitment. We are of the opinion that the mere
exclusion of such employees, without other reference thereto, from
coverage of the contract between the Association and the UMW cannot
reasonably be construed as an agreement not to organize or represent
these employees in an appropriate unit apart from the Company's
mining employees 73 We find, therefore, that the contract between
the Association and the UMW is no bar to this proceeding, and shall
deny the Company's motion to dismiss the petition on that ground.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.-
We find that a question affecting commerce has arisen concerning
the reliresentation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. 1'11F AVVROVRIATE UNIT
The Union seeks a unit of all employees at the Company's stores,
clubhouses, fountauns,'5 hotels,", markets, recreation halls and pool-
rooms, including part-time and extra employees, but excluding office
clerical and supervisory employees.', The Company contends that
only a multiple-employer unit of such employees, district-wide or
association-wide in scope, is appropriate, pointing to the long history
of collective bargaining on such a basis between the Association and
the UMW with respect to mining employees. The Company urges
further, in support of its position, that the competition between its
stores and recreational facilities and similar facilities operated both
by competing coal mining operators and other individuals in the area
gives rise to the desirability of a multiple-employer unit, and dis-
tinguishes the instant case in that respect from the Li77,vjbroolo Coal
Company case.'S
Although we have frequently favored following a collective bar-
gaining pattern established on a broad basis for some categories of
employees in setting up units appropriate for employees in other
categories, we have not held, in the absence of organization in the
id See Matter of Lillybrool. Coal Company, supra, Matter of Pocahontas Fuel Company,
Incorporated, supra, Matter of Consolidation Coal Company, supra and Matter of
A,tleghcay Ludlum Steel Corporation, 64 N L it 1: 1254 Cf Matter of Esiggs
Indiana Corporation, 63 N L R B 1270, wherein there was a specific undertaking by the
parent organization of the union there involved, in its contract covering certain classes of
employees, not to accept for membership certain other classes of employees
The Field Examiner repotted that the Union submitted 44 application cards, and that
there were 59 employees in the appropriate unit
15 These fountains are, in fact, restaurants
16 Same as clubhouses.
a The unit consists of clerks, waitresses, cooks, maids, and drivers Although the pets;
Zion specifically excludes office clerical employees, there are no such employees at the
facilities here involved
13 Matter of Lillybrook Coal Company. supra
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
broader unit, that immediate bargaining for employees in such other
categories on a narrower basis is necessarily precluded.,' Since the
record indicates that the Union's organizational activities have not
been association-wide or district-wide in scope, we perceive no reason
for holding on the basis of the first ground urged that a unit confined
to the Company's mercantile employees is inappropriate. Nor do we
find any merit to the Company's contention that competition requires
a multiple-employer unit. The evidence indicates that the mercantile
facilities of the Company and the other coal mining operators in the
district cater, for the most part, to their respective employees and to
the other residents in their particular localities, and thus are not in
competition. In view of the foregoing, we are of the opinion that the
mercantile employees of the Company may properly function together
as a unit for the purposes of collective bargaining.
There remains for consideration the question of inclusions in and
exclusions from the unit.
The Company would apparently exclude from the unit those em-
ployees who have replaced former employees now in the armed seiv-
ices, on the theory that they are temporary employees who are not
expected to remain in the Company's employ at the end of the war.
Inasmuch as these war service employees have a reasonable expectancy
of employment for an indefinite period, we shall, in accordance with
our usual practice, include them in the unit.21
The Union would exclude store managers from the unit, while the
Company takes no position with respect to their inclusion or exclusion.
Inasmuch as the store managers have the authority to discharge em-
ployees, we shall exclude them from the unit as supervisory em-
ployees. Neither the Union nor the Company takes any position with
iespect to the inclusion or exclusion from the unit of the assistant
store managers employed by the Company. Since the record discloses
that the assistant store managers have authority effectively to recom-
mend the discharge of employees, we find that they are supervisory
employees within the meaning of our customary definition, and, ac-
cordingly, we shall exclude then from the unit.
We find that all employees at the Company's stores, clubhouses,
fountains, markets, recreation halls and poolrooms, including war
service employees, but excluding assistant store managers, store man-
agers, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
"See Matter of Liltybiook Coal Company, supra, and cases cited therein.
=0 See Hatter of Consolidation Coal Company, supra
ELK HORN COAL CORPORATION 1569
appropriate for the purposes of collective bargaining within the mean
ing"of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during,the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
The record discloses that the Company employs part-time or extra
employees in its mercantile facilities, but does not indicate whether
they are employed with any regularity, or whether their work is only
temporary or casual in nature. Under the circumstances, we shall
declare eligible to vote all regular part-time or extra employees, but
shall exclude from participation in the election all such employees
who are not regularly employed by the Company.21
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Howard N. Eaven-
son, W. W. Goldsmith and J. J. Moore, Ancillary Receivers for the Elk
Horn Coal Corporation, Wayland and Fleming, Kentucky, an election
by secret ballot shall be conducted as early as possible, but not later
than sixty (60) days from the date of this Direction, under the direc-
tion and supervision of the Regional Director for the Ninth Region,
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Sections 10 and 11, of said Rules and
Regulations, and our determination in Section V, above, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
the said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the_
United States who present themselves in person at the polls, but ex-
21 See Matter of Consolidation Coal Company, supra.
670417-46-vol. 64-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether or not they desire to be represented by
United Construction Workers, affiliated with the United Mine Workers
of America, for the purposes of collective bargaining.
MR. GERA1D D. REILLY, dissenting :
For the reasons set forth in my dissenting opinion in Matter of
Lillybrook Coal Company, 60 N. L. R. B. 31, I am constrained to dis-
sent from the majority opinion in this case.