Elk River Coal and Lumber Co.

National Labor Relations Board - Board Decisions

Mar 11, 1946

66 N.L.R.B. 565 (N.L.R.B. 1946)

In the Matter of ELK RIVER COAL AND LUMBER COMPANY and UNITED
MINE WORKERS OF AMERICA , DISTRICT 17
Case No. 9-R-2005.-Decided March 11, 1946
Mr. H. D. Battle, of Charleston, W. Va., for the Company.
Messrs. T. C. Townsend and William Bizzard, of Charleston, W.
Va., for the U. M. W.
Mr. John V. Ray, of Charleston, W. Va., and Messrs. L. S. Faeemire
and James E. Vaughn, of Widen, W. Va., for the League.
Mr. Donald B. Brady, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Mine Workers of America,
District 17, herein called the U. M. W., alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Elk River Coal and Lumber Company, Widen, West Virginia,
herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Harold
M. Weston, Trial Examiner. The hearing was held at Charleston, West
Virginia, on February 5, 1946. The Company, the U. M. W., and
Employees League of Wtden Miners, hereinafter called the League,
appeared and participated. During the hearing, the League filed
a motion to dismiss the petition on the ground that an existing
contract between the League and the Company constitutes a bar
to the present determination of representatives. For reasons set
forth in Section III, infra, the motion is denied. 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 hearing are free from prejudi-
66 N. L . R. B., No. 75.
565
S66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Elk River Coal and Lumber Company, a West Virginia corporation
having its principal offices at Dundon, West Virginia, is engaged
at Widen, West Virginia, in the mining and distribution, of coal.
The Company is also engaged ins production of lumber, but coal
mining operations at Widen are solely involved in the present pro-
ceeding, , During the year ep4ing'December 31, 1945, the Company
produced approximately 892,000 tons of bituminous coal, valued at
in excess of $1,000,000, more than 75 percent of which was shipped
to points outside the State of West Virginia.
The Company admits, and we find, that it is engaged in com-
merce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, District 17, is a labor organiza-
tion, admitting to membership employees of -the Company.
Employees League of Widen Miners is an unaffiliated labor
organization, admitting to membership employees of, the Company.
M. THE QUESTION CONUMNING 'REPRESENTATION
The U. M., W., by letter dated Scivember 24, 1945, advised the
Cornpany that it represented' majority of the Company's employees
and requested a tsollective- baTgaining 'conference. The Company,
by letter : dated December 7, 1945, - acknowledged receipt of the
U. M. W. Tequest but declined to negotiate, stating that the Company
was bound by an existing,oohtract with` the League.
Then contract' between the ' Company and the League was signed
on'Decenibow 23, 1944, and by its terms became effective February 3,
1945, upon' approval by the War Labor Board. The contract provided
that it would remain in effect for a period' of 1 year and thereafter
for an ndditional year unless either party should notify the other
in' writing not less than 30' days prior to the expiration date of its
intention to - terminate, the,eontraet. The League contends that,
inasmuch as neither it nor the Company had given notice of termina-
tion, the contract remains in effect until February 3, 1947, and con-
ELK RIVER COAL AND LUMBER COMPANY 567
sequently is a bar to a present determination of representatives.
However, the U. M. W. filed its petition on November 27, 1945,
before the automatic renewal date of the contract. Accordingly, we
find that the contract cannot operate as a bar to the instant
proceeding.'
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the U. M. W. represents a substantial number
of employees in the unit hereinafter found appropriate.2
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, substantially in accord with the agreement of the parties,
that all the Company's employees working in and around the North
and South Rich Run Mines, but excluding employees engaged in
lumbering, railroading, and general grading work, store employees,
office and clerical employees, independent contractors, employees who
deliver timber for the mine foremen and assistant foreman,,and all
or any other supervisory employees having authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status ^ of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by means of an election by secret ballot.
The Company contends that many of its employees are presently
in the armed forces of the United States, and that these employees
should be allowed to vote by mail. We are of the opinion that the
facts in this case do not substantially differ from those in Hatter
of South West Pennsylvania Pipe Lines.' Accordingly, we shall
provide for the mail balloting of employees. in the armed forces
who fall within the appropriate unit, subject to the conditions
hereinafter mentioned.
1 See Matter of The Pet Milk Company, 64 N. L. R. B. 901; Matter of Binon Choco-
lates, Inc., et at., 65 N. L. R. B. 591.
2 The Field Examiner reported that U. M. W. submitted 277 application for„ mQmr
bership cards , 265 of which bore the names of employees on the Company's pay roll
of January 23, 1946. There are approximately 600 employees in the appropriate unit,
The League relies on the contract as evidence of its interest in this proceeding.
8 64 N. L . R. B. 1384. There are approximately 82 employees either in the armed
services or in the process of being discharged.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall direct that the question concerning representation be
resolved by an election by secret ballot among employees 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 Regional Director shall mail ballots to employees within the
appropriate unit on military leave, provided one or more of the
parties hereto, within seven (7) days from the receipt of the Direction
of Election, files with the Regional Director a list containing the
names, most recent addresses, and work classifications of such em-
ployees. The Regional Director shall open and count the ballots
cast by mail by employees on military leave, provided that such
ballots must be returned to and received by the Regional Office within
thirty (30) days from the date they are mailed to such employees
by the Regional Director.'
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 Re-
lations 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 Elk River Coal
and Lumber Company, Widen, West Virginia, an election by secret
ballot shall be conducted as early as possible, but not later than
forty-five (45) days from the date of this Direction, under the
direction and supervision of the Regional Director for the Ninth
Region, acting in this matter as agent for the National Labor Re-
lations Board, and subject to Article III, Sections 10 and 11, of
said Rules and Regulations, 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 said pay-roll period
because they were ill or on vacation or temporarily laid off, and
' A free interchange between the interested parties of information on the addresses
and work categories of the employees to be voted by mail will be necessary, in order
to avoid challenges and post -election objections. Accordingly, the Board will make
available to all interested parties any information of this nature furnished it by any
other party . In the event that the parties should send the absentee voters informa-
tion or literature bearing directly or indirectly on the pending election, copies of all
such documents should be simultaneously filed with the Regional Office for inspection
by or transmittal to the other parties . However, acceptance or transmittal of such
literature by the Board 's office is not to be construed as conferring immunity on the
filing party in the event that objections are later interposed concerning its content. The
usual principles will apply.
ELK RIVER COAL AND LUMBER COMPANY S69
including employees in the armed forces of the United States, but
excluding 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 they desire to be represented
by United Mine Workers of America, District 17, or Employees
League of Widen Miners, for the purposes of collective bargaining,
or by neither.
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