Hart Coal Co.

National Labor Relations Board - Board Decisions

Apr 25, 1940

23 N.L.R.B. 194 (N.L.R.B. 1940)

In the Matter Of HART COAL COMPANY AND HART COAL CORPORATION
and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED
WITH THE C. I. O. and PROGRESSIVE MINE WORKERS OF AMERICA,
DISTRICT #5, AFFILIATED WITH THE A. F. OF L., PARTY TO THE
CONTRACT
In the Matter Of HART COAL COMPANY AND HART COAL CORPORATION
and UNITED MINE WORKERS OF AMERICA, DISTRICT #23, AFFILIATED
WITH THE C. I. O.
Cases Nos. C-1412 and I?-1607, respectively
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
April ^?5, 1940
On November 13, 1939, the National Labor Relations Board, herein
called the Board, issued a Decision, Order, and Direction of Election
in the above-entitled case.I Pursuant to the Direction of Election, an
election by secret ballot was conducted on December 12, 1939, at
Morton's Gap, Kentucky, under the direction and supervision of the
Regional Director for the Eleventh Region (Indianapolis, Indiana).
On January 17, 1939, the Regional Director, acting pursuant to
Article III, Section 9, of National Labor Relations Board Rules and
Regulations-Series 2, issued and' duly served upon Hart Coal Com-
pany, Morton's Gap, Kentucky, herein called the Company, United
Mine Workers of America, District #23, affiliated with the Congress
of Industrial Organizations, herein called the United, and Progressive
Mine Workers of America, District #5, affiliated with the American
Federation of Labor, herein called the Progressive, an Election Re-
port containing a tally of the ballots, and his findings and
recommendations.
In his Election Report the Regional Director reported in part as
follows :
i 17 N L R B (i41
23N L R.B, No 16.
194
HART COAL COMPANY
I
195
Total Number of Employees Alleged Eligible to Vote____ 326
Total Number Voted__________________________________ 303
Total Number of Valid Votes Cast_____________________ 170
Total Number of Votes for the UNITED MINE WORKERS OF
AMERICA, District #23, affiliated with the C. I. O__-___ 77
Total Number of Votes for the PROGRESSIVE MINE WORK-
ERS OF AMERICA, District #5, affiliated with the
A. F. of L------------------------------------------ 89
Total Number of Votes for NEITHER Organization------- 4
Total Number of Blank Ballots________________________ 0
Total Number of Void Ballots________________________ 0
Total Number of Challenged Ballots____________________ 133
II. CHALLENGED BALLOTS
In regard to the 133 challenged ballots which had been placed in
,sealed envelopes, the undersigned ruled that the 83 employees
engaged in, production work at Mine No. 3 were eligible to vote.
Regarding the challenged ballots of employees at Mines Nos. 1
and 2, the Director ruled that 9 were eligible, 25 were not eligible
because of their occupation, and 16 were to remain challenged
because sufficient information had not been submitted to permit the
Director to decide on the question of eligibility.
III. COUNTING OF VALID CHALLENGED BALLOTS
In accordance with the above ruling, the representatives of the
principal parties were reconvened on December 28, 1939 for the
purpose of opening the sealed envelopes and counting such ballots
,as, were declared eligible. The undersigned hereby makes his
findings with respect to the results of the election following the
inclusion of those ballots ruled valid.
Total Number of Employees Alleged Eligible to Vote ----- 326
Total Number Voted_________________________________ 303
Total Number of Valid Votes Cast _____________________ 262
Total Number of Votes for the UNITED MINE WORKERS OF
AMERICA , District #23, affiliated with the C . I. O----- 138
Total Number of Votes for the PROGRESSIVE MINE WORK-
ERS OF AMERICA, District # 5, affiliated with the
A. F.of L------------------------------------------ 119
Total Number of Votes for NEITHER Organization ------- 5
Total Number of Blank Ballots__ _____________________ 0
Total Number of Void Ballots____ ____________________ 25
Total Number of Challenged Ballots___________________ 16
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. RULING ON THE SIXTEEN CHALLENGED BALLOTS
A subsequent investigation disclosed that of these ballots, 5 of
the challenged voters, namely, Tom Fowler, T. B. Prince, Buell
DeMoss, Pete DeMoss and Iley Whitfield were not entitled to
cast a ballot because they were not eligible employees as described
in the Direction of Election. As the counting of the remaining
11 challenged ballots would not materially effect the results of the
election, a finding as to these is unnecessary.
On January 20, 1940, the Company filed its objections to the con-
duct of the ballot and the Election Report, requesting that the election
be set aside and that a new election be held. The Company objected
to the conduct of the ballot and the Election Report upon the
grounds, inter alia, that the Regional Director had improperly ruled
upon challenged ballots, that the Company was denied the right of
having a representative present at the polling place during the elec-
tion, and that due to intimidation and coercion on the part of the
United the real choice of a bargaining agent for its employees was
not ascertained by the election. On January 22, 1940, the Progressive
filed its objections to the conduct of the ballot and the Election Re-
port, and requested that the election be set aside and that a new
election be held. The Progressive objected to the conduct of the
ballot and the Election Report upon grounds substantially similar
to those advanced by the Company.2
On January 24 and February 10, 1940, respectively, the United
filed its answers to the objections made by the Company and by the
Progressive. In its answers the United denied the allegations made
by the Company and by the Progressive, and prayed that the objec-
tions be overruled and that the United be certified as the representa-
tive of the Company's employees.
On February 27, 1940, the Regional Director, acting pursuant to
Article III, Section 9, of National Labor Relations Board Rules and
Regulations-Series 2, as amended, issued and served upon the par-
ties his Report on Objections to Conduct of Ballot and Election
Report, in which, after investigation, he ruled with respect to the
objections to his original rulings on the challenged ballots, that T. B.
Prince, one of the five employees previously -determined by him to
be ineligible, was eligible and that the remaining 11 employees upon
whom he had made no ruling were also eligible. He stated, however,
that "As the result of the election will not be materially affected by
the counting of the additional 12 valid ballots, such ballots will
2 The Progressive did not object to the absence of a company representative at the bai
loting nor to certain of the rulings on challenged ballots.
HART COAL COMPANY 197
remain in their original sealed envelopes." 3 He further reported
each of the other objections made by the Company and the
Progressive, respectively, to be without merit and overruled them.
Thereafter, the Progressive and the Company each filed a letter with
the Board in support of their original objections.
The Board has considered the Election Report, the objections and
affidavits filed by the Company and by the Progressive, the answers
and affidavits filed by the United, and the Report on Objections to
Conduct of Ballot and Election Report, and finds that the objections
filed by the Company and by the Progressive do not present substan-
tial or material issues with respect to the conduct of the ballot or
the Election Report.' The requests of the Company and the Pro-
gressive that the election be set aside are hereby denied.
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
IT IS HEREBY CERTIFIED that United Mine Workers of America, Dis-
trict #23, affiliated with the Congress of Industrial Organizations, has
been designated and selected by a majority of the persons employed
in the mining operations of the Hart Coal Company, Morton's Gap,
Kentucky, as production employees, excluding superintendents, mine
foremen, section foremen, room bosses, face bosses, top bosses, entry
bosses, electricians in a supervisory capacity, all other supervisory em-
ployees, and "guards" or "watchmen," as their representative for the
purposes of collective bargaining and that pursuant to Section 9 (c)
of the National Labor Relations Act, United Mine Workers of America,
District #23, affiliated with the Congress of Industrial Organizations,
is the exclusive representative of all such employees for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
MR. WILLIAM M. LEISERSON, concurring and dissenting :
I am of the opinion that it would be better policy to open and count
the 13 challenged ballots of employees who have been found eligible
to vote in order that the complete results of the election might be
ascertained.
The United still retained 138 votes out of 274 valid votes cast.
The Board is of the opinion that C T Dukes , one of the group of 25 employees at
Mines Nos 1 and 2 found by the Regional Director to be ineligible, is eligible to vote, and
so finds This leaves 13 challenged ballots of employees eligible to vote, which have not
been counted in the tabulated vote We affirm the Regional Director 's ruling that it is
unnecessary to count such ballots, since , even if it be assumed that all 13 voted for the
Progressive , it would not affect the result of the election in which the United received 13S
votes, a majority of the 275 ballots cast.
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