Fentress Coal and Coke Co.

National Labor Relations Board - Board Decisions

Oct 10, 1942

44 N.L.R.B. 1033 (N.L.R.B. 1942)

In the Matter Of FENTRESS COAL AND COKE COMPANY and UNITED
MINE WORKERS OF AMERICA, DISTRICT 19
Case No. C-2222 .-Decided October 10, 1942
Jurisdiction : coal mining industry.
Unfair Labor Practices.
Interference, Restraint, and Coercion: charges of, dismissed; statements and con-
duct of constable and deputies held not attributable to respondent ; additional
testimony of alleged interference by supervisory employees found not entitled
to credence.
Discrimination: alleged discharges. failure to employ, and work assignment given
an employee upon the discontinuance of his former job, found not dis-
criminatory.
' Practice and Procedure : complaint dismissed.
Mr. Marcel Mallet-Prevost and Mr. William M. Pate,'for the Board.
Mr. W. M. Fuqua, of Nashville, Tenn., for the respondent.
Mr. John Grady O'Hara, of Jellico, Tenn., for the Union.
Mr. Harley G. Moorhead, Jr., of counsel to the Board.
DECISION!
AND
ORDER
STATEMENT OF THE CASE
Upon a third amended charge duly filed on April 23, 1942, by United
Mine Workers of America, District 19, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Acting Regional Director for the Tenth Region (Atlanta, Georgia),
issued its complaint, dated April 24, 1942, against Fentress Coal and
Coke Company, Nashville and Wilder, Tennessee, herein called the
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting. commerce, within the
'meaning of Section 8 (1) 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, were
duly served upon the respondent and the Union.
With respect, to the unfair labor practices, the complaint, as
amended at the hearing, alleged in substance: (1) that since March
44 N. L. R.B., No. 198.
1033
1034 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
15, 1941, the respondent had interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act by a variety of acts, including warnings not to join the
Union, statements disparaging the Union, its leaders, and members,
(threats to discipline or, discharge those who joined, the interrogation
of employees concerning union membership, and spying upon the
Union; (2) that the respondent discharged John Humphrey on-March
22) 1941, Jeff Murphy on June 24, 1941,-W. B. Miller on July 25, 1941,
and James S'tults on September 11, 1941, and thereafter refused to
reinstate these employees, because of - their union membership and
-activity; (3) that on July 28, 1941,.the respondent discriminated in
-respect to the work assignment of Ernest Stults because of hi's union
membership and activity;, and (4) that the respondent refused to em-
ploy Paul Stults on June 15, 1941, and John Humphrey on September
1, 1941, because of their union membership and activity. In its answer
to' the complaint, as amended; filed on May 4, 1942, the respondent
denied that it had engaged in the unfair labor practices' alleged.
Pursuant to notice, a hearing was held on May 7 and 8, 1942, at
Crossville, Tennessee, before Samuel Edes,, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent,
and the Union were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine -and cross -examine
Witnesses , and to introduce evidence bearing on the issues was afforded
all parties . On May 7, 1942, at the opening of the hearing, the Trial
Examiner, without objection, granted a motion by counsel for the
Board to amend the complaint to strike therefrom an allegation that
Ernest Stults had been discharged and substitute an allegation that
he had been discriminated against in regard to his work assignment,
on July 28, 1941,.because of his union membership and activity.' At
the conclusion of the hearing, the Trial Examiner, without. objection,
granted a motion by counsel for the Board to amend the complaint-to
conform to the proof in formal matters. A like motion to amend the
answer of the respondent was also granted.. The Trial Examiner re-
served ruling on a motion of the respondent to dismiss the complaint,
-which he subsequently granted in his Intermediate Report. During
the course of the hearing, the Trial Examiner made rulings on other
motions and on the admissibility of evidence. The Board has reviewed
the rulings of the,Trial Examiner and finds that, no prejudicial, error
.was committed. The rulings are hereby iiffirmed. At the close of the
-hearing, the respondent, the Union, and counsel for the Board,pre-
sented oral argument on the record before the Trial Examiner. All
The motion also requested , and the ruling , of the Trial Examiner permitted , 'amend-
.ment of the complaint to allege that , the respondent was incorporated under the lawn of
the State of Delaware , not Tennessee as alleged in the original complaint. ;s -
1
FENTRESS rCOAL .AND COKE -COMPA %Y 1035
parties were afforded an opportunity to file briefs with the Trial Ex-
aminer, but none were filed.
Thereafter,, the Trial' Examiner issued his Intermediate Report
dated June 10, 1942, finding that, the respondent had not engaged in
the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed. On August 1, 1942, the Union filed
its exceptions to the Intermediate Report and a brief in support there-
of; and on August 12, 1942, the respondent filed an opposing brief. -
Pursuant to notice and at the request of the respondent and the
Union, a hearing- was thereafter held before the Board at Washing'-
ton, D. C., on September 1, 1942, for the purpose of oral argument.
The'respondent and the Union were represented by counsel and par-
ticipated in the argument.
The Board has. considered the exceptions and briefs submitted by
the Union and the respondent, and, insofar as the Union's exceptions
are inconsistent with the findings, conclusions, and order set forth
below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following-:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Delaware corppration having its principal office
in Nashville, Tennessee, is engaged in the business of mining and sell-
ing bituminous coal at its mines located in Wilder, Fentress County,
Tennessee. The respondent purchases approximately $40,000 worth
of supplies annually for use in its mining operations, approximately
one-third of which is shipped to its mines from points outside -the
State of Tennessee. Approximately 30,000 tons of coal are mined'and
produced by the respondent monthly. Of this amount, 20 percent is
sold and shipped by the respondent to coal dealers in the State of
'Georgia. Approximately 7,000 tons of coal are sold and shipped
monthly to the Tennessee Valley Authority in the State-of Tennessee.
An additional 4,000 tons are sold each month to the Georgia Railroad,
which receives the coal at the respondent's mines and transports -it
to the State of Georgia. Approximately 6 ,000 tons monthly are sold
by the respondent to the Tennessee Central railroad, which ,operates
lines both within and without the State of Tennessee.
H. THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America, District 19, is a labor organiza=
tion affiliated with the Congress of Industrial Organizations, ad.
mitting to membership employees of the respondent.' .
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged interference,- restraint„ and coercion
In March 1941, various of the employees at the respondent's mines
in Wilder, Tennessee, became interested in the Union and signed mem-
bership application cards. In May the Union held a public mass meet-
ing at the Vine Ridge Schoolhouse. About 200 persons, including
miners and members of the community, attended. The meeting was
addressed by representatives of the Union and, at its conclusion, some
,20 employees were inducted as members. In this period a. local of the
Union was formally established and regular membership meetings
were held.2 Thereafter, in October 1941 and April 1942, the Union
sponsored 2 additional public mass meetings to interest the community
in its efforts and to increase its membership.
Among those who attended the, schoolhouse mass meetings were
four deputy sheriffs, Joe Demonbreun, Ed Hammock, Isaac Bar-
ringer, and Bod Ledbetter, as well as the local constable, Morg Stults.
These men, wearing guns, stood about the meeting place, mingled
with the crowd, and listened to the speeches of the union representa-
tives. It was contended at the hearing that the deputies and the
constable, attended the meetings to inform themselves of the identity
of the union leaders and members, that they undertook in other, more
open, ways to discourage union membership, and that their conduct
was attributable to the respondent. The undisputed evidence, how-
ever, shows that these men took no action to interfere with the free
and orderly conduct of the meetings conducted by the Union. The
meetings admittedly were open to the public, and the Union had
urged the entire community to attend. In these circumstances it
was entirely expectable that the peace officers of the community should
be present, especially since, as the record shows, there was frequent
disorder and more than occasional shooting and violence in the area.
No significance may • be attached to the fact that the peace officers
were wearing guns. As was testified, they wore guns nearly "all the
time." The record„moreover, contains no showing that the'officers
were instructed by the respondent, directly or indirectly, to attend
the meetings, or that they attended in any capacity other than as
'citizens 'and peace officers of the community.
Various of the employees testified that two of the deputies, Demon-
breun and Ledbetter, and the constable,, Stults, were opposed to the
2 The Local was established as Local 4467, District 19, United Mine Workers of America.
The United Mule Workers, of America had previously made attempts to organize the em-
ployees of the respondent. -In 1930 the United Mine workers had a contract with the
respondent ; in 1931 a strike involving violence , dynamiting , and shooting occurred, and
troops were called in to preserve order.
FENTRESS- COAL AND COKE COMPANY- 1037
Union and indicated their opposition to the employees. Demon-
breun, familiarly ,known as "Big Joe," apparently was the chief
offender in this regard. According to-two of the employees, C. E.
Gracey and Jeff Murphy, Demonbreun at various times questioned
them regarding their attendance at union meetings. In addition,
Gracey testified, Demonbreun advised- him that he had better "stay
away" from the schoolhouse mass meetings and that he had "rio
business" attending. On this occasion, according to Gracey, Demon-
breun also,indicated that it would not be advisable for Charles Liles,
organizer of the Union, to come to` the respondent's mining camp.
On other occasions, Gracey testified, Demonbreun declared that there
was "nothing to" the Union and "there would never. be anything to
it." Floyd Smith, an employee, testified that he, also, had heard
Demonbreun declare that there "wasn't nothing to" the Union, that
it had "starved him out" on a former occasion, and that he "wouldn't
have anything to do with it." According to Smith, Demonbreun also
declared,that a lot of'men had been "left" on account of the Union
and, that many more would "leave" if they fooled with it. Another
of the employees, Ernest Stults, testified that one of Demonbreun's
daughters told him to advise Liles not to come out to the mines "be-
cause if he did he would be bushwacked." Stults admitted, however,
that Liles did return to the mining area on several occasions thereafter
and was not molested in any„way. Stults further admitted that,
although he was one of the chief proponents of the Union, he had
never personally heard any of the deputies "bemean" the'Union and
that such information as he had in that regard was all second-hand.
Demonbreun, however, was not called to deny any of the statements
attributed to him by the witnesses for the Board.
In regard to Ledbetter, Gracey testified that he, like Demonbreun,
had declared that there was nothing to the Union, and that Ledbetter
in addition stated, "I know what it is like, we had it before, and it
will ruin anybody that fools with it, and . . . anybody that fools
with it, the're' ain't no man to him at all." M. B. Smithson, another
employee, testified that on one occasion Ledbetter accused the union
men of getting his son drunk and inveigling him into joining the
Union. 'Ledbetter, according to Smithson, threatened to cut the -
throats of Berton Ledbetter, his nephew, and Arkley Bilbrey, a field
representative of the Union, if they had had anything to do with the
matter. Ledbetter did not contradict Smithson's testimony. He
testified that he had been told That union adherents had "got him
(i. e., his son) drunk and made him join the Union, and that made
me mad." 3 In addition, Ledbetter testified that Bilbrey told him he
At 'the hearing it Ras stipulated that, if called to the stand, Joe (Pap) Dodson, an
employee, would testify that Ledbetter's son "left home drunk the day he joined the
Union . . ., that he joined of his own free will and accord, and that . . . no Unior
member had anything-to do with his becoming intoxicated."
1038 DECISIONS ` OF NATIONAL LABOR ' RELATIONS BOARD
Was "going to make every son-of-bitch join the Union." 4 According
to Ledbetter, he was not opposed to the Union; "if it is carried out
right it'is a big thing." He testified that he had belonged to the
Union on three occasions "away back yonder," and had not then
approved of the manner in which it was operated. 'With reference
to the present union organization, however, Ledbetter believed it was
"a lot better than it was away back then."
The only incident connecting Constable Morg Stults with anti-
union activity is found in the testimony of R. L. Miller, an employee.
Miller testified that he heard Stults declare on one occasion that, if
the union organizer, Liles, "stopped" him, he would "shoot the son-
of-a-bitch full of holes." According too the testimony of Gracey, how-
ever, when Demonbreun on another occasion indicated that it would
not be wise for Liles and other organizers to come to the mining camp
and when other employees present indicated,that they were "ready"
for such a visit, Constable Stults intervened, stating, "Boys, I wouldn't
do that. .. . ' If you were- employed like they are, you wouldn't do
that, you would be doing what they are doing."
If attributable to the respondent, the conduct at least of Demon-
breun and Ledbetter in this period would form an adequate basis
for finding that the respondent interfered with, restrained,, and
coerced its employees in the exercise of the rights guaranteed, in
Section 7 of the Act. We are of the opinion, however, as was the
Trial- Examiner; that there is no substantial evidence of any con-
nection between the activities of the deputies and the respondent.
The deputies, appointed by the sheriff of Fentress County, receive
no regular remuneration but are paid on a fee basis for the perform-
ance of their duties as peace officers.5 The fees are wholly insufficient
to maintain the deputies. In order to earn their livelihood, they find
it necessary to work for the respondent. Their employment, however,
commenced prior to the effort of the Union to organize the miners,
and was not special iii character. Demonbreun was employed in the
machine shop and powerhouse at the respondent's mines. Ledbetter
was employed as a carpenter. Barringer worked as a weighmall,
and Hammock, no longer with the respondent, was a carpenter.' In
addition, Ledbetter and Barringer were employed on various occasions
as night watchmen, in which capacities they looked after the mine
property, and equipment and at the same time performed other ditties
' Smithson testified that Bilbiey had served a penitentiary term for killing another
union man, and that Ledbetter drew a knife when he confronted Bilbrey. Ledbetter did
not admit drawing a knife, but testified that Bilbrey made the ' remark about forcing
everyone to join the Union because " He thought everyone was afraid of him I told
him he couldn 't make me do nothing."
S The -Union contends that the number . of deputies is excessive for the needs of the com-
munity, thereby implying that they were, in effect, company guards, but we ale convinced
that no such inference can.be drawn ' from the record.
e Constable Morg Stults was employed at the weigh house of the respondent.
;FENTRESS ,COAL AND COKE.'COMPANY' . 1039:
about the mine tipple . For some months after ' the advent of the:
Union, Demonbreun did not ,perform ally work for the respondent;
but sat about at the respondent 's store. However, no inference ad-
verse to the respondent may be drawn from this fact. The undisputed
evidence shows that in this period Demonbreun was physically unable
to perform manual labor ,, and, as Demonbreun 's physician testified;:
had been ordered to stop working . Although one of the employees,
W. B. Miller , testified that Hammock also stopped work "to some,
extent" and stayed around the company store about the time that
union' , organization started, there is no evidence that this was not
during a normal lay-off of the kind which ' frequently occurs at the
'mine - during slack periods, or that Hammock's presence about the
store , if he was employed at that 'time, was not during periods when
Hammock may have been off duty.
None of the deputies received any special compensation from the
respondent ; the only compensation received by them consisted of the
wages they earned as ordinary workers. While Paul Stults, an em-
ployee, testified that he had been told by one of Demonbreun 's daughters
that Demonbreun was being paid $5 a day to stay around the store
during the period when he was not physically able to work , this testi-
money is entirely uncorroborated hearsay. Demonbreun 's daughter did
not take the stand to - show the basis upon which she may have made
such a statement . S. C. Boyer, 'secretary and treasurer of the respond-
ent, testified that the respondent never employed any of the deputies
in any capacity other than as mine workers, . and that that was the only
work for which they received pay from the respondent . Ledbetter
corroborated this testimony . The company store was operated as a
place where any member of . the community could trade ; and was -a
convenient place for the men to congregate . Further, it appears af-
firmatively that the deputies exercised their authority as'peace officers'
in an impartial manner. On one occasion , the record shows, Ledbetter
took A. B. Adkins , the general superintendent in active charge of:
the respondent 's mines, into custody for excessive drinking. ' Nor does'
it appear that any of the deputies undertook at any time to, act on
behalf of the respondent . . To the extent that they spoke unfavorably
of the Union, they appeared to be voicing their own views, not those
of the respondent ., Demonbreun,and Ledbetter , so far as the record
shows, opposed the Union only because of their own past experiences,
as workers , with union organizations in the area .' While there were
rumors in the community that the deputies were "company paid" and
acted as "company guards," nearly all the employees who testified at
the hearing were frank to admit that they did not know whether there
was any -basis for such talk. The deputies apparently were equally
well known as "the law. " In all of the circumstances of the case, we
1040 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
find, 'as did the' Trial Examiner, that the evidence is insufficient to,
support a finding-that . the conduct of the deputies was attributable
to the respondent . 'T-. • -
There was some . testimony adduced at the hearing to show that vari=
oils of the respondent 's. supervisory ' officials engaged . in antiunion
activity:. Robert-Thomason-testified that P..F.,Reece; "boss " or."fore-
man" on one of the night shifts, stated on two or three occasions during
February and March 1941 that he had been president of one of the
union locals for, a number of years and that there "wasn't a damned
thing to - it,'-' and that "it would make a tramp and a hobo out of a, magi
if he fooled with it:" .Thomason also ' testified , however, that ' Reece.
made these statements . as his own personal views in the matter,'. not
those of the respondent . ' The,., respondent ; the record 'discloses, -had'
instructed its supervisory force to maintain strict neutrality regarding
union organization and not to discuss unionism with the men . -Floyd
Smith testified that Superintendent Adkins had 'stated that the-men
had had . a union before and "there wasn 't-nothing to it. " He also
testified that Ed Brown, a foreman , had made similar statements,
and that W. H. Prater , a general mike foreman , asked applicants for
jobs at the respondent 's Horse Pound mine whether they -belonged to
the Union , and, if they did, refused to employ them .7 , - Adkins -did ,not-
testify. Brown , and Prater denied having engaged in anyf of the
activity attributed to them by Smith : Brown testified that he and
Smith had talked about "some certain fellers" who had represented
unions in the past, and, that he told Smith "there'wasn 't anything to"'
some of them . Brown further testified that, in the only other conversa-
tions he had with employees regarding the Union , he advised them
that "the Union principles were good , . . . and if •I were where a
Union was at, I,would be as good a one as they had ." 8 Little reliance
may be placed upon 'the testimony of Smith; he admitted that "a great
deal" of his testimony was based upon mere rumors that he may have
heard. As he put it, `,'What I heard is true maybe , and maybe it is
not; and I can't say 'about that."
Ike Whited, an employee , testified that the only time Adkins ever-
spoke to him about the Union was when he went into a shack house
to warm his hands. According to Whited , Adkins, who was drinking.
at the time and who has a reputation for being one of the heaviest.
drinkers in the community , stated, "If you fool with ' me, I will nail.
you to that bench , you Union son-of-a-bitch." Earl D.Stults, an'
employee who , was with the two most of the time on this occasion,
• 7 Nevertheless , Smith testified that "a pretty good bunch " of union members were
employed at the Horse Pound mine
s Brown had been president of a, local of the Union and also a union' representative. ` In
the course of his testimony , he stated , "A foreman can't olgamze . . . I couldn't tell
them I was a Union man
1
,FENTRESS COAL AND'COKE COMPANY 1041_
testified that he did not hear Adkins make any such statement. Whited
testified that on no other occasion was reference made by any of the
respondent's supervisory staff to his union affiliations, although it
was- generally known that he was a union adherent.
'-Gracey -testified that Oakley Hargis, a fellow employee, on one
occasion took a copy of the wage agreement that the Union had with
the Southern Tennessee Coal Producer's Association and, showing it
to Adkins, stated that Gracey "doesn't seem to be thinking that he is
getting what he ought to get here.". According,to Gracey's testimony,
Adkins replied that he would burn up the copy of the agreement if he
could get his hands on it. Gracey also testified that Adkins merely
"turned and walked off." It is clear that Gracey had been drinking
rather considerably on this occasion. We agree with the finding of .
the Trial Examiner that no weight can be attached to Gracey's testi-
mony as to what occurred.
In summary,-the statements and conduct of the constable and the;
deputies, as we have found above, are not attributable to the respond-
ent;, and the additional testimony of alleged interference by the
respondent given by Smith, Whited, and Gracey is,' as we have indi-
cated and as the 'Trial Examiner found, not entitled to credence.
Thomason's- testimony as to Foreman Reece's testimony is not con-
tradicted, but Thomason himself admitted that he understood Reece
to be stating his own view, rather than the respondent's. Further-
more, the respondent's policy, so far as the record shows, and as the
respondent's secretary and treasurer, Boyer, testified, was to keep
"hands off" the effort to organize its employees. It does not appear
that the respondent was -behind any effort to frustrate -union organ-
ization, or that the employees could fairly infer from any action of
the respondent-that they were not free to undertake collective action
through the Union. On the entire record, we find, as did the Trial
Examiner, that there is, no substantial evidence that the respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act:
B. Alleged discrimination
1. John Humphrey
The complaint alleged that the respondent discharged John
Humphrey on March 22, 1941, and thereafter, on September 1, 1941,
refused to employ him, on account -of his union -membership and
activity. Humphrey, had worked for the respondent in various ca=
pacities for about 9 years; his last employment was as a coal loader
at the respondent's Horse Pound mine. According to Humphrey,
on March 21, Van Nickens, a fellow employee, approached him at his
487498-42-vol 44-66
_1042 - DECISIONS ' OF. NATIONAL ; LABOR , RELATIONS !BOARD
working place in the mine and solicited him to join the Union:
Humphrey agreed. Shortly thereafter, Humphrey testified, his fore-
man, Ed Brown, ho longer with the respondent, told him that he had
been advised by Van Nickens that Humphrey had been talking to^
him about the Union . Humphrey informed Brown that the contrary
had been true, that Van Nickens had been speaking to him about the
Union. From Humphrey 's testimony it would appear that he saw
Brown and Van Nickens engaged in conversation after Van Nickens
had solicited him to join the Union. Brown denied that he ever talked
to Van Nickens about Humphrey, and the Union. Dewey Conatser,
who was Humphrey's working partner at the time and as such worked
directly alongside of Humphrey, corroborated Brown's testimony.
He testified that he never saw either Van Nickens or Brown approach
Humphrey regarding the Union in this period.
The Trial Examiner credited, and we credit, the testimony of Brown
and Conatser in this regard. Although Humphrey sought to have it
appear that he saw Brown and Van Nickens together after Van Nickens
had left his place, he described the two as being about 12 or 14 feet
away-"just around the corner ," in which event it is difficult to imagine
how Humphrey could have seen them. Moreover, if Van Nickens in
fact had just successfully solicited Humphrey to join the Union, it
does not at all square with experience to suppose, that Van Nickens
would then . immediately go off to his foreman and advise him that
Humphrey had been talking to him about the Union.
The following day, March 22, Humphrey was discharged. The
respondent asserted as the reason for this action the fact that Hum-'
phrey had been loading "dirty coal ," i. e., coal containing dispropor-
tionate quantities of sulphur and bone, rendering it unsuitable for fuel
purposes. Humphrey admitted at the hearing that a "right smart bit"
of dirty coal had come out of the mine the day he was discharged, but
denied that he had been responsible for loading dirty coal either on this
occasion or'at any other 'time. Conatser , who worked with Humphrey
and who was discharged at the same time for participating in the load
ing of the dirty coal,, testified that he had warned Humphrey on other
occasions against loading dirty coal because he feared that they would
both be discharged if the coal were traced to their location. The
morning they were discharged , Conatser testified , he and Humphrey
had quarreled over the latter's persistence in loading dirty coal into
the cars assigned to them. Brown apparently overheard the argument.
He so testified , although he could not exactly place the date of the
quarrel. In any event , Brown testified , he had been "after" the two
about loading dirty coal on previous occasions . The mine engineer had
advised Brown that an excessive amount of dirty , coal was coming from
the mine. Brown, accordingly , was especially watchful of this matter.
FENTRESS COAL AND COKE COMPANY-' 1043
Brown testified that on the morning Humphrey and Conatser were
discharged he noticed that one of the cars in the train being pulled out-
of the mine by Drewry, the motorman, near the location of Humphrey-
and Conatser, appeared to be loaded with dirty coal. When this car
was, dumped at the mine tipple Brown's appraisal proved correct;-
it was full of dirty coal. According to Brown and Prater, general
mine foreman, when Humphrey and Conatser were confronted with
the dirty coal, neither denied that it had been loaded at their working
place. ..Each merely blamed the other for loading it. Both, accord-
ingly, were discharged. - Conatser at the time was not a member of the
Union. -
` From this state of the record, the discharge of Humphrey does not
appear to °have-been motivated by any discriminatory purpose. There
is no credible evidence that the respondent knew that Humphrey was
a union member at the time; indeed, it is not at all clear that Humphrey
had joined prior to his discharge. Nor does there appear to be any
basis for inferring that the respondent was opposed to the Union. On
the other hand, the loading of dirty coal,-as Prater testified, was a
serious offense, and the record shows that others-had been discharged
on that account. Although Humphrey testified that Brown and others
advised him that they did not know whether the dirty coal found by
the respondent liad_come from, the work ,location -of Humphrey and
Conatser, the Trial Examiner was not persuaded by the testimony and
we do not credit it. The respondent's supervisory officials had ample
basis for believing that Humphrey and Conatser had loaded the coal.
Brown had heard the two quarreling about the matter. Moreover,
neither of the men at the time denied that the coal had come from their
place. In addition, the record discloses that each car of coal, when
brought to the mine tipple, could be traced to the team of men that had
loaded it. Each of the loading teams in the mine is given checks bear-
ing a certain number; the men place their checks on the cars they load.
Thereafter, the coupler on the train of cars takes the checks from
the cars aid hangs them on a board at the mine tipple before the cars
are dumped. At the same time the train motorman marks the numbers
on the side of the motor. In this manner, the respondent is able, prior
to the dumping of the cars, to trace each of the cars to the men who
loaded it. In all of the circumstances disclosed by the record, the Trial
Examiner found, and we find, that the evidence is insufficient to support
d finding that Humphrey was discharged by the respondent because of
his union membership or activity. - -
About 4 months after he was discharged, Humphrey applied for
further, employment with the respondent. He 'spoke to Prater and,
Superintendent Adkins, the latter promising to see- what he could do:'
It does,'not appear whether there were vacancies at the time Hum-
1044_ DECISIONS - OF NATIONAL,, LABOR . RELATIONS, BOARD
phrey • applied for work or whether Humphrey again pursued the
subject after , speaking to Adkins . Humphrey testified that after,
Adkins left , him on the occasion he last applied for work, Adkins
stopped and spoke to Deputy Sheriff Demonbreun "for a little bit.'r
Demonbreun thereafter asked Humphrey, whether he would vote
against the Union, if an election were held. On another occasion-
following this , according to Humphrey , Demonbreun , advised him
that if he would say he "would vote against * * * , ilnd wouldn't
join the ,Union," it "wouldn 't be over three or four weeks until" lie
would again have a job with the respondent. Demonbreun did not
testify. In-view, however, of the demonstrated unreliability of Hum-
phrey in testifying concerning the Brown-Van Nickens matter, above
set forth , the Trial Examiner was not, and we are , not, persuaded by
the testimony of Humphrey in this regard . In any event, -the con-
nection between Adkins and Demonbreun 's questioning of Humphrey
is at best only speculative.9 Although Conatser had joined the Union-
after his discharge, he }vas-reemployed by the respondent on August
26, 1941.10 In all the circumstances disclosed by the record , the Trial
Examiner found, and we find, that the evidence is insufficient to,sup-
port a finding that Humphrey was refused employment by the re-
spondent because of his union membership or activity.
2. Jeff Murphy
The- complaint alleged that Jeff Murphy was discharged by the
respondent on June 24 , 1941 , because of his union membership and'
activity. Murphy had been employed by the respondent intermit-
tently during a period of about 12 or 13 years. He had been work-'
ing for the respondent for a period of :6 months to a year prior to
his discharge on June 24 .' During the last 2 or 3 months of that ,
period, he had been assisting a contractor who cut coal for the re-
spondent on a contract basis. In April, Murphy had joined the
Union. He does not.appear to have been an active member. He'
testified that he attended union meetings "once in- a while"; the only
meeting he could clearly remember attending was the first of the
schoolhouse mass meetings in May. On June.24, he was discharged.
According to Prater, who effected the discharge, Murphy had been an
unsatisfactory worker in that he could not be depended upon to work
regularly. Tom Watson, the contractor under whom Murphy had
worked, testified that Murphy frequently and without notice, failed-
6 The record contains no evidence that any employee was ever hired on Demonbreun's
recommendation.
10 Conatser testified .that he "quit fooling" with the Union before he went back to work
because Ackley Bilbrey, who was then a representative of the Union , "got to drinking a
lot, and tut ned his car over, and caused a lot of trouble " It does not appear , however,
and Conatser did not believe , that the respondent was aware of his intention to give up-
the Union at the time he was taken back to woi k.
FENTRESS COAL AND' COKE 'COMPANY ' • 1045
to show up for ,work thereby disrupting Watson's schedule since he
could not always find a man to substitute for Murphy at the last
minute. In addition, according to 'Watson, Murphy, when the neces-
sity arose, consistently refused to work on Saturday nights. Accord-
ing to the undisputed testimony; Watson advised Prater that, because
of Murphy's unreliability, he could not continue Murphy, but, Prater`
persuaded him to work with Murphy a while longer and see if he
could not be made to improve. Shortly thereafter, however, Murphy
quit working for Watson of his-own accord. He continued to work
'for the respondent, however, "just kinder picking up different jobs,
whatever there might be around, working extra, as they call it."
Shortly before his employment with the respondent terminated, Mur-
phy asked Prater whether he had any work for him at the Horse
Pound mine. Murphy would not deny at the hearing that Prater
discussed his unreliability as a worker on this occasion. Thereafter,
Prater gave Murphy a separation notice, indicating that his work was
."not satisfactory."", Prater, after giving Murphy the separation
notice, asked him if he really would work if he were given a job.
Murphy stated that he would work if given the opportunity; Prater
thereupon told him that he would be allowed to. work at the mine
if he could`find'"someone to,work with" (a "buddy,) or a "job ivitlh
somebody" (a contractor). Murphy was unable to remember whether
Prater so advised him. In any event it does not appear that Mur-
phy's dismissal was motivated by any reason other than his unrelia-
bility as a worker. Murphy admitted that no one connected with
the respondent had ever spoken to him about his membership in the
Union and that "most all" of the men that joined continued in the
employ of the respondent. When he applied for a job with the re-
spondent in February 1942, he was reemployed, although at that time
he still belonged to the Uiiion.
In all the circumstances disclosed by the record; the Trial Examiner
found, and we find, that the evidence is insufficient •to ' warrant a
finding that Murphy was discharged by the respondent on account of
his union membership or activity.
3. W. B. Miller
The complaint alleged that W. B. Miller was discharged on July
24, 1941, because of his union membership and activity. Miller had
'been employed by, the respondent as a coal digger since 1913, except
,for "some little time" in that period. In March or April 1941, Miller
joined the Union. He was discharged on July 24 or 25. The re-
1' A separation notice did not constitute a discharge unless the employee took-it to the
office and turned it in to get his "time." Prater testified that Murphy was free to tear up
the slip and that Prater expected him to do so.
1046 DECISIONS -,OF NATIONAL- LABOR ,RELATIONS BOARD
spondent 'asserted that 'Miller was discharged for -repeated failure,
contrary to the State mining regulations and the rules of the respond-
ent, to keep the place in which he worked properly timbered.This
-was a serious *offense which might lead to.collapse-of the mine-roof.
Miller admitted that two of the miners had been killed for failure to
keep their working place properly timbered. Prater testified that
after this accident, he issued instructions to the foremen under him
-to discharge any man who did not timber properly; regardless of how
long the service record of such employee might be. Miller admitted
that the day before he was discharged Prater and a mine inspector
,had found his place improperly timbered. The uncontradicted evi-
dence establishes that Miller on one or two occasions in 1940 had been
-laid off for not timbering properly, and that Prater had warned
Miller about this matter on several occasions. The mine- inspector,
called as a witness for the Board, testified that it would be dangerous
to allow an employee, who habitually failed to timber properly, to
continue to work in a mine. Further, as Prater testified, two other
men, prior to Miller's dismissal, had been discharged for this offense.
In the opinion of the Trial Examiner, and in our opinion, the record
discloses no connection between Miller's discharge and his affiliation
with the Union., We find, as did the Trial Examiner, that the evi-
,dence is insufficient to sustain a finding that Miller was discharged
-because of his union membership or activity.
4. Ernest Stults
The complaint alleged that on July 28, -1941, the respondent dis
criminated in respect to the work assignment of Ernest Stults because
of.his union membership and activity. ; Stults, recording 'secretary
and an active proponent .of the Union, had, been employed by the
respondent fairly- regularly for a period of about 10 years. Stults
worked as a trackman and lineman in the respondent's Old Mine; in
addition he timbered, took down bad rock, and performed other mis-
cellaneous duties. The Old Mine was, in the process `of being -worked
out. Accordingly, as Stults admitted, it became necessary to discon-
tinue the main line motor in that mine. On July 28, Stults was ad-
vised that there was no further work for him there. His work was
taken over by the head wiremah and his helper, to the extent that such
work continued to be necessary. Although the helper had less senior-
ity than Stults, Stults'admitted that the respondent` did not have or
follow any policy of seniority. At the time Stults' job was discon-
tinued,- two ,other- employees, Spurlin and Miller, who- were not mem-
bers of the Union, were also laid off. They were offered, and accepted
'other jobs at £he'respondent's Horse Pound mine, where they earned
less than they had earned at the Old Mine. -
FENTRESS COAL AND COKE COMPANY 1047
Stults was also offered a job at the Horse Pound mine, as a. coal
loader.. He did not, however, believe that there were any good places
open at the mine and, not being desirous of working for less than he
had, earned, at his former job, refused:12• Prater,-whop offered; Stults=
the job as coal loader, testified that he did not know whether there
was then a good place open in the Horse Pound mine at which Stults
could load coal, but that he offered Stults "a place as good as we had
to work in." Further, Prater testified and Stults conceded that some
-of the coal loaders earned more money than Stults had been earning
.at the Old Mine; in large part, earnings depended upon the industry
of the individual loader.
In all the circumstances disclosed by the record, the Trial Examiner
-found, and we find, that the evidence is insufficient to warrant a find-
ing that Ernest Stults was discriminated against in any manner by
the respondent because of his union membership or activity. -
5. James Stults
The complaint alleged that James Stults was discharged by the-re-
sponden 't on September 11, 1941, . on'account of his union membership
and activity . James Stults worked for the respondent for about 34
years. His last employment was as a motorman on a train that de-
livered empty cars to loaders in the ' mine; when the cars were loaded
with coal he would gather and deliver them to the main motor which
would pick the cars up and deliver them to the tipple outside the
mine. Stults joined the Union in March 1941. He admitted that he
took no active part as a member.
The respondent contended that Stults was discharged because he
was taking , with- no apparent • reason, inordinately- long - periods -to
deliver to the' main motor the cars he picked up, thereby delaying that
.motor and causing the total amount of coal taken from the mine.to
fall off appreciably. The record bears out this contention.- Accord=
ing to W. M. Bilbrey , assistant mine foreman , the tonnage output of
the mine had been running "short" for about 2 or 3 weeks prior to
Stults' dismissal. Bilbrey had been advised that Stults was taking
too long in making his trips. Asa consequence, Bilbrey advised Stults
that he would have to "pick up." Stults admitted that on the day
prior to his discharge, Bilbrey complained on two separate occasions
that he was taking too long to make his trips. , Bilbrey testified that
on one of these occasions Stults had taken 1 hour and 5 minutes on a
trip that should not have averaged more than 45 minutes, and that
on the other . occasion Stults took , 1 hour and 45 minutes on a similar
" Stults had not had much experience as a coal loader, and as such he would have had
to buy tools. Some 3 weeks after his discharge, however, he took a job loading coal at
another mine in the vicinity. _ ' ,
`1048 DECISIONS. OF NATIONAL LABOR; RELATIONS BOARD
trip. Stults admitted that Bilbrey spoke to him about these two' in-
stances. He testified that he did not "know"'how long he was gone on
'these trips, but did not "think'.' he was gone as long as Bilbrey had
,charged.13 That day Bilbrey advised Stults that his performance was
not satisfactory. Stults replied that he was doing his best. Stults
continued working for the remainder of the afternoon. The next
,morning he returned dressed in street clothes and advised his foreman
,that he would continue to work as he had been, asking the foreman
-what he was going to do about it.14 Stults was discharged.15 Thur-
man Shephard, who replaced Stults, was also a member of the Union.
According to Bilbrey, the output of-the mine increased 42 tons a day
,after Stults was replaced.16 Stults never applied for reinstatement.
In all the circumstances disclosed by the record, the Trial Exam-
iner found, and eve find, that the evidence is inadequate to sustain a
finding that James Stults was discharged because of his union mem-
bership or activity.
6. Paul Stults
The' complaint alleged that the respondent refused to employ Paul
Stults on June 15, 1941, because of his union'membership and activity.
-Paul, son of James Stults, had been employed from March 1938 until
March 1941. In his last position with the respondent his duties in-
cluded attendance upon various switches at the respondent's power
13 On one occasion , Stults testified , he was delayed by the fact that his trolley pole
had broken , and on the other by the fact that the motor had gone off the track. But
Stults admitted that it did not take him more than 5 to 10 minutes to fix the pole and
that it did not take "long" to put the motor back on the track . Stults broke poles while
"heading" the pole contrary to mine regulations and company rules. This annoyed his
foreman but did not cause the discharge.
14 Stults was asked on cross -examination if he had not told employees Stephens and
Shephard that he intended to force his foreman to discharge him Stults answered, "I
did not tell then that in that way "
15 The Union contends that a conversation between Stults and "Sammy" Boyer, the
secretaiy-treasurer of the respondent, demonstrates that the discharge of Stults was dis-
criminatory The conversation occurred when Stults took his discharge slip to Boyer,
and asked for his money, explaining only that he had been doing his best . Boyer told
Stults that he was sorry , that Stults had been with the respondent a long time , and that
when Stults' difficulties were settled Boyer hoped Stults would return and work with the
respondent again Stults testified that Boyer said lie should return when "the thing"
was settled ; and the Union contends that Boyer thereby referred to union organization.
We are not convinced that Boyer ' s statement referred to union activity.
1e Although Stults testified that he always took as many cars out of the mine as the
men loaded , it seems clear from ' the record that any considerable tardiness by Stults
in delivering his cars to the main motor would adversely affect production . The mine
operated with a limited number of cars. If Stults were late on any trip , the main motor
would be kept waiting and the number of times per day that empty cars could be deliv-
ered to the men would be cut, down, not only in the section of the mind serviced by
Stults, but also in the sections serviced by the other motormen . Ike Whited , 'one of the
.loaders in the section in which Stults ' worked, testified that Stults always delivered as
many cars to him as any motorman and that he received no more cards from Shephard
who replaced Stults. But Whited admitted that Shephard serviced more men than had
Stults. Isom Davis, ' another loader , also testified that Stults ' lead supplied him with as
'many cars as'had other motormen ; but Davis admitted that he was not on Stults' run
in the period of which the respondent made complaint.
r
-C' " -FENTRESS COAL AND COKE COMPANY 1049
substation . Although he had admittedly been negligent on that job,
on one occasion causing some cars to be wrecked, the respondent did
not discharge him. Instead, the respondent offered him another job
which would have paid him 60 cents more a day . Stults, however,
refused. According to his testimony , Prater told him that he "had"
to take the job offered him. He refused because, as he, put it, "I can
be led but I don't like to be drove. " Stults admitted that Prater
urged him to consider the matter carefully and not to sever his rela-
tionship ' without giving it careful thought. According to Stults,
Prater stated , "I ain't got nothing against you * ' * *. You go on
home and study this thing over and come back and see me in the
morning * * *." Stults nevertheless persisted in his decision to
quit.
The day he quit, Stults testified , he joined the Union . Thereafter,
about the middle of June 1941 , Stults applied for reemployment with
the respondent . According to Stults, Adkins then said that he had
nothing against Stults' work, but would not put him on because of
"that damn trouble " in which his father, James, and brother, Ernest,
were figuring . 17 Adkins did not testify,. Prater, however , testified
that there is a fair amount of turn-over at the mines , that there may
be openings during one week and not during the next, and that Stults
was not given employment on this occasion because there was no job
open at the particular time he applied. The Trial Examiner did not
credit Stults ' testimony regarding his conversation with Adkins. Al-
though the Union had commenced organizing while Stults was still
employed in March, and Stults ' brother, Ernest , bad taken an active
part in the organizational effort at that time, the respondent never-
theless, as found above , had made every effort to keep Paul in its
employ. Moreover , at the time Paul was refused employment, both
his father and brother were still in the respondent's employ, and
would, so far as the record shows, have continued to work for the
respondent but for circumstances unrelated to their union affiliation.
These facts are not consistent with the statement attributed to Adkins
by Stults, and it seems wholly unlikely that Adkins made the state-
ment. We find, as did the Trial Examiner , that he did not.
In all the circumstances disclosed by the record , the Trial Examiner
found, and we find, that the evidence is insufficient to warrant a find-
ing that Paul Stults was refused employment by the respondent be-
cause of his union membership or activity.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
i
17 Stults testified that he thought Adkins referred, not to trouble between the Union and
the respondent, but to trouble between men who were' members of the Union land men who
were not ; Stults also conceded that he did not know of trouble "between any union."
1050 DECISIONS ' OF ^ NATIONAL LABOR RELATIONS-BOARD
CONCLusIONs OF LAW
1. United Mine Workers of America, District 19,, affiliated with the
Congress of Industrial Organizations; is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. The operations of the respondent occur in commerce, within the
meaning of Section 2 (6) of the Act.
3. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act, and has not engaged in unfair labor practices as alleged
in the complaint, within the meaning of Section 8 (1) of the Act.
4. The respondent has not discriminated in regard to the hire and
tenure of employment of John Humphrey, Jeff Murphy, W. B. Miller,
Ernest Stults, James Stults, and -Paul Stults, and has not engaged
in unfair labor practices as alleged in the complaint, within the mean-
ing of Section 8 (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the com-
plaint issued against the respondent, Fentress Coal and Coke Com-
pany, Nashville and Wilder, Tennessee, be, and it hereby is, dismissed.'
Mn. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.