Mine "B" Coal Co.

National Labor Relations Board - Board Decisions

Sep 19, 1938

8 N.L.R.B. 1155 (N.L.R.B. 1938)

In the Matter of MINE "'B" COAL COMPANY, THE MINE B COAL COM-
PANY and ELSHOFF COAL COMPANY and PROGRESSIVE MINERS OF
AMERICA, LOCAL 54
Case No. C-854-Decided September 19, 1938
Coal Mraing Rdastry-Settlen,cnt: stipulation providing for cessation of
unfair labor practices and invalidation of closed-shop contract-Oder: entered
on stipulation.
Mr. I. S. Dorfman and Mr. Jack Evans, for the Board.
Winston, Strawn & Shaw, of Chicago, Ill., for the respondent.
Mr. I. H. Fancher and Mr. C. E. Pearcy, for the Progressive.
Mr. Thurlow Lewis, of Springfield, Ill., for the United.
Mr. Richard Salant, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges filed by Progressive Miners
of America, Local 54, hereinafter called the Progressive, the National
Labor Relations Board, herein called the Board, by Leonard C.
Bajork, Regional Director for the Thirteenth Region (Chicago,
Illinois) issued its complaint, dated August 1, 1938, against Mine
"B" Coal Company, The Mine B Coal Company, and Elshoff Coal
Company, Springfield, Illinois, herein collectively called the respond-
ents, alleging that the respondents had engaged in and were engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (5), and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act.
In respect to the unfair labor practices, the complaint alleged in
substance (1) that on or about August 18 and September 20, 1937,
the respondents and District No. 12, United Mine Workers of
America and International Union, United Mine Workers of America,
herein called the United, executed a contract requiring as a condition
of employment membership in the United, and that at the time of
the contract and at all times thereafter, the United did not represent
8 N L. R. B , No. 142.
117213-19-vol 8-74 1155
1156 \ATIONAL LABOR RELATIONS BOARD
a majority of the employees covered by the contract; that the respond-
ents thereafter urged and required membership in the United as a
condition to a return to work; and that after August 18, 1937, the
respondents failed to hire the employees who had gone out on strike
on May 12, 1937, for the reason that they joined the Progressive and
refused to join the United; and (2) that by means of an election
conducted by the Board on December 15, 1937, and of a certification
by the Board on January 3, 1938, the Progressive was chosen as
exclusive representative of all the employees of the respondents in an
appropriate unit for the purposes of collective bargaining; that al-
though at all times since the Progressive has been the exclusive repre-
sentative, and although on January 4, 1938, the Progressive requested
the respondents to bargain collectively, the respondents refused and
have continued to refuse to recognize or negotiate with the Progres-
sive. Copies of the complaint and notice of hearing were served
upon the respondents, the United, and the Progressive.
On August 8, 1938, the respondents filed their answer denying the
validity of the Board election, denying that the United did not repre-
sent a majority on August 20, 1937, and denying that they had failed
to negotiate with the Progressive after January 1, 1938.
On August 10, 1938, prior to the hearing scheduled for August 11,
1938, the Elshoff Coal Company and representatives of the Board
stipulated that the Elshoff Coal Company, an Illinois corporation,
organized November 20, 1937, has no interest, ownership, or connec-
tion with the operation or lease of Mine "B", the mine in question,
and that the complaint in so far as it is applicable to Elshoff Coal
Company, may be dismissed without prejudice.
At the same time the respondents, the United, the Progressive, and
representatives of the Board entered into a stipulation settling the
case. The stipulation is as follows :
It is hereby stipulated and agreed by and between Mine "B"
Coal Company. and The Mine B Coal Company by Carl H.
Elshoff, hereinafter called respondents; Progressive Miners of
America, by J. H. Faucher and C. E. Pearcy for and on behalf
of Local 54, hereinafter called Progressive Union; International
Union, United Mine Workers of America, District 12, United
Mine Workers of America and Provisional Local 7469, United
Mine Workers of America, by Thurlow G. Lewis, hereinafter
called United Union; and I. S. Dorfman and Jack Evans attor-
neys for the National Labor Relations Board, hereinafter called
the Board, as follows :
1. Upon charges duly filed by the Progressive Union, through
Joe Ozanic, an accredited agent and representative of Progres-
sive Union, for this purpose, the Board, by Leonard C. Bajork,
DECISIONS AND ORDERS 1157
Regional Director for the Thirteenth Region (Chicago, Illinois),
acting pursuant to authority granted in Section 10 (b) of the
National Labor Relations Act, 49 Stat. 449, hereinafter called
the Act, and acting pursuant to the Rules and Regulations of
the Board, Series 1, as Amended, Article IV, Section 1, and
Article II, Section 23, duly issued a Complaint and Notice of
Hearing thereon, on the 1st day of August, 1938, against re-
spondents, and each of them. The Complaint, Notice of Hearing
thereon, Second Amended Charge and Rules and Regulations
of the Board, Series 1, as Amended, were duly served on August
2, 1938, upon the respondents and each of them, Progressive
Union, and the United Union. Hearing was scheduled for 10
A. M. on August 8, 1938, in the Post Office Building in the City
of Springfield, County of Sangamon, State of Illinois. Subse-
quently on August 6, 1938, respondents filed a motion for con-
tinuance with Leonard C. Bajork as Regional Director for the
Thirteenth Region of the Board and an order was issued by said
Leonard C. Bajork and duly served upon each of the parties
granting continuance until August 11, 1938, at 10 A. M., the
hearing to be held in the Illinois Appellate Court Room, Supreme
Court Building, Springfield, Illinois.
2. Respondent, Mine "B" Coal Company, is now, and has been
a corporation organized and existing under and by virtue of the
laws of the State of Illinois since December 22, 1927, having its
principal office and place of business in the City of Springfield,
County of Sangamon, State of Illinois. Respondent, The Mine
B Coal Company, is now and has been since October 1, 1937, a
corporation organized and existing under and by virtue of the
,laws of the State of Delaware, and is now and has been since
November 22, 1937, authorized and licensed to transact business
in the State of Illinois, having its principal office and place of
business in the City of Springfield, County of Sangamon, State
of Illinois.
Mine "B" Coal Company operated a mine, known as Mine
"B", located near Springfield, Illinois, hereinafter called the
mine, under a lease from on or about the date of its incorpora-
tion up to November 22, 1937, at which time it transferred all
of its property and mining rights pertaining to said mine to
The Mine B Coal Company who thereafter by right of subroga-
tion or otherwise took possession of, operated, and paid royal-
ties on said mine. 98/0 of the stock of Mine "B" Coal Company
and 98% of the stock of The Mine B Coal Company and the con-
trol and management of each corporation, is and has been vested
in Carl H. Elshoff since the incorporation of the respective
corporations.
e
1158 NATIONAL LABOR RELATIONS BOARD
3. Respondent, Mine "B" Coal Company, from the date of
its incorporation to November 22. 1937, has been engaged at the
Mine in the extraction, purchase, sale, and distribution of bi-
tuminous coal. During the year from July 1, 1936, to June
30, 1937, said respondent mined, sold, and distributed approxi-
mately 340,000 tons of bituminous coal at a gross value of ap-
proximately $680,928.82. Of this amount approximately 38%
was shipped from the mine iu the State of Illinois to points
outside of the State of Illinois, and approximately 62% was
shipped from the mine in the State of Illinois to points with;ii
the State of Illinois. During the same period said respondent
purchased large quantities of granulated blasting powder, l um-
ber, mine timbers, mules, machinery, oil, grease, steel, iron, and
electrical supplies which cost approximately $50,000.00. Of this
amount approximately 50% was shipped from points outside of
the State of Illinois to the mine in the State of Illinois, and
approximately .501/o was shipped from points in the State of
Illinois to the mine in the State of Illinois.
Due to a strike by the employees, the mine has been in opera-
tion only three days during the period from May 12, 1937 to
the date of this stipulation.
4. The Progressive Miners of America Local 51 is a labor
organization as defined in Section 2, Subdivision (5) of the Act.
5. A unit consisting of the production and maintenance em-
ployees of respondents employed at the mine, excluding clerical
and supervisory employees, would insure to the employees the full
benefit of their right to self-organization, and would otherwise
effectuate the policies of the Act, and is a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
6. This Stipulation and Agreement, together with the Com-
plaint, Notice of Hearing, Affidavit of Service, Second
Amended Charge, Motions, Orders, Answer to Complaint, and
the National Labor Relations Board Rules and Regulations.
Series 1, as amended, may be introduced as evidence by filing
them with the Chief Trial Examiner of the Board at Wash-
ington; D. C., and respondents jointly and severally waive their
right to hearing as set forth in Section 10 (b) and (c) of the
Act.
7. Upon the basis of the record and this Stipulation and
Agreement, an Order may be entered by the Board, and upon
application by the Board, the Circuit Court of Appeals for the
appropriate Circuit may enter a decree ordering and decreeing
that : -
DECISIONS AND ORDERS 1159
(1) Respondents shall jointly and severally cease and desist :
(a) From in any manner interfering with, coercing, or intimi-
dating employees in their right of self-organization to form,
join, or assist labor organizations of their own choosing and
engaging in concerted activities with other employees for the
purpose of collective bargaining and other mutual aid or pro-
tection ;
(b) From discouraging membership in Progressive Miners of
America, Local 54, or any other labor organization of its em-
ployees or encouraging membership in the United Mine Work-
ers of America, Provisional Local 7469 or any other labor
organization of its employees, or otherwise discriminating in
regard to hire or tenure of employment or any term or con-
dition of employment;
(c) From refusing to bargain collectively with Progressive
Miners of America, Local 54, as the exclusive representatives of
all production and maintenance employees, excluding clerical
and supervisory employees employed at the mine, in respect to
rates of pay, wages, hours of employment, and other conditions
of employment until such time as the National Labor Relations
Board should certify another labor organization as the repre-
sentative of the employees in the said unit.
(d) From giving effect to or in any manner enforcing or
recognizing certain agreements dated August 18 and September
20, 1937, or any renewals or supplements thereto, between Mine
"B" Coal Company and District No. 12, United Mine Workers
of America and International Union, United Mine Workers of
America.
2. Respondents shall jointly or severally, take the following
affirmative action to effectuate the policies of the National Labor
Relations Act :
(a) Upon request, bargain collectively with Progressive Miners
of America, Local 54, as the exclusive representative of all pro-
duction and maintenance employees of respondents employed
at the mine, excluding clerical and supervisory employees, in
respect to rates of pay, wages, hours of employment, and other
conditions of employment until such time as the National Labor
Relations Board should certify another labor organization as
the representative of the employees in the said unit.
(b) Upon the reopening of Mine "B", offer to each of the
employees on the permanent payroll of Mine "B" Coal Com-
pany on May 12, 1937, immediate and full reinstatement to the
positions which they respectively held prior to May 12, 1937,
without prejudice to rights and privileges previously enjoyed
by them; provided that in the event conditions will not permit
1160 NATIONAL LABOR RELA'T'IONS POARD
immediate reinstatement of employees on the payroll of May 12,
1937, the order of employment shall be in accordance with the
practice heretofore established in the mine. No new employees
shall be hired for any position formerly occupied by employees
on the payroll of May 12, 1937 , until all such former employees
who as of said payroll did such work shall have been offered said
position.
(c) Post and keep visible in prominent places in respondents'
mine or mines operated by them jointly or severally, for a period
of 30 days after the opening of any such mine, copies of the
Order of the National Labor Relations Board issued in this
matter.
8. All stipulations and agreements herein made and their
terms and conditions are hereby expressly made subject to the
approval of the National Labor Relations Board.
On August 27, 1938, the Board issued an order approving the
above stipulation and making it a part of the record in this pro-
ceeding, and ordering further, in accordance with Article II, Section
37, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, that the proceeding be transferred to and
continued before it.
Upon the basis of the above stipulation and the entire record in
the case the Board makes the following:
FINDINGS OF FACT
1. TIIE BUSINESS OF THE RESPONDENT
Mine "B" Coal Company, an Illinois corporation, has its princi-
pal office and place of business in Springfield, Illinois. It operated
a mine, known as Mine "B", near Springfield, under a lease from on
or about its incorporation in 1927 until November 22, 1937. On
November 22, 1937, Mine "B" Coal Company transferred its rights
and property in the mine,to The Mine B Coal Company, which had
been incorporated under the laws of Delaware, on November 22,
1937, and which has its principal office and place of business in
Springfield, Illinois. Ninety-eight per cent of the stock, and the
control and management of each corporation , is vested in Carl H.
Elshoff.
Dune "B" Coal Company has been engaged in the extraction, pur-
chase, sale, and distribution of bituminous coal. From July 1, 1936,
to June 30 , 1937, it mined, sold, and distributed approximately 340,-
000 tons of coal at a gross approximate value of $681 ,000. Of this
amount, about 38 per cent was shipped from the mine in Illinois
DECISIONS AND ORDERS 1161
to points outside the State of Illinois. During the same period it
purchased large quantities of granulated blasting powder, lumber,
mine timbers, mules, machinery, oil, grease, steel, iron, and electri-
cal supplies which cost approximately $50,000. Of this amount,
about 50 per cent was shipped from points outside the State of Illinois
to the mine in Illinois.
We find that the aforesaid operations of the respondents consti-
tute a continuous flow of trade, traffic, and commerce among the
several States.
II. THE APPROPRIATE UNIT
We find that the production and maintenance employees of the
respondents employed at the mine, excluding clerical and supervisory
employees, constitute a unit appropriate for the purposes of collec-
tive bargaining and that said unit insures to employees of the
respondents the full benefit of their right to self-organization and
to collective bargaining and otherwise effectuates the policies of the
Act.
III. THE REPRESENTATION BY THE PROGRESSIVE OF A MAJORITY'
IN THE APPROPRIATE UNIT
On December 15, 1937, pursuant to an order by the Board,' an
election was held among the employees of the respondents in the
appropriate unit. On January 3, 1938, the Progressive was, in
accordance with the results of the election, certified by the Board as
the exclusive bargaining agent of the respondents' employees in the
appropriate unit.2
We find that on January 3, 1938, and at all times thereafter, the
Progressive was the duly designated representative of a majority of
the employees in the appropriate unit, and, pursuant to Section 9
(a) of the Act, was the exclusive representative of all the employees
in such unit for the purposes of collective bargaining in respect to
rates of pay; wages, hours of employment, or other conditions of
employment.
ORDER
Upon the basis of the above findings of fact and stipulations, and
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 respondents, Mine "B" Coal Company
'Mutter of Mine B Coal Conipanif and P)o(pesslve Alureis of Anwilea, Local No T1,,
4N L. R. B. 316.
Matter of Mme B Coal Company and Piogressii,C Minerti of Anieiroa. Local No, 5y,
4 N L. R.B 316, 322. '
1162 NATIONAL LABOR RELATIONS BOARD
and The Mine B Coal Company, their officers, agents, successors, and
assigns, shall jointly and severally :
1. Cease and desist :
(a) From in any manner interfering with, coercing, or intimidating
employees in the exercise of their right of self-organization, to form,
join or assist labor organizations of their own choosing and engaging
in concerted activities with other employees for the purpose of collec-
tive bargaining and other mutual aid or protection ;
(b) From discouraging membership in Progressive Miners of
America, Local 54, or any other labor organization of its employees,
or encouraging membership in the United Mine Workers of America,
Provisional Local 7469, or any other labor organization of its em-
ployees, or otherwise discriminating in regard to hire or tenure of em-
ployment or any term or condition of employment;
(c) From refusing to bargain collectively with Progressive Miners
of America, Local 54, as the exclusive representative of all production
and maintenance employees, excluding clerical and supervisory em-
ployees employed at the mine, in respect to rates of pay, wages, hours
of employment, and other conditions of enmployment, -until such time
as the National Labor Relations Board should certify another labor
organization as the representative of the employees in the said unit;
(d) From giving effect to or in any manner enforcing or recog-
nizing certain agreements dated August 18 and September 20, 1937,
or any renewals or supplements thereto, between Mine "B" Coal Com-
pany and District No. 12, United Mine Workers of America and
International Union, United Mine Workers of America.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Progressive Miners of
America, Local 54, as the exclusive representative of all production
and maintenance employees of respondents employed at the mine, ex-
cluding' clerical and supervisory employees, in respect to rates of
pay, wages, hours of employment, and other conditions of employ-
ment until such time as the National Labor Relations Board should
certify another labor organization as the representative of the em-
ployees in the said unit;
(b) Upon the reopening of Mine "B", offer to.each of the em-
ployees on the permanent pay roll of Mine "B" Coal Company on
May 12, immediate and full reinstatement to the positions whicli they
respectively held prior to May 12, 1937, without prejudice to rights
and privileges previously enjoyed by them; provided that in the
event conditions will not permit immediate reinstatement of em-
DECISIONS AND ORDERS , 1163
ployees on the pay roll of May 12, 1937, the order of employment
shall be in accordance with the practice heretofore established in the
mine. No new employees shall be employed for any position formerly
occupied by employees on the pay roll of May 12, 1937, until all such
former employees, who, as of said pay roll, did such work, shall have
been offered said positions;
(c) Post and keep visible in prominent places in respondents' mine
or mines operated by them jointly or severally, for a period of thirty
(30) days after the opening of any such mine, copies of the order
of the National Labor Relations Board in this matter.
And it is further ordered that the complaint, in so far as it is
directed against Elshoff Coal Company be, and it hereby is, dismissed
without prejudice.
Mx. EDWIN S. SMITH took no part in the consideration of the above
Decision and Order.