Norma Mining Corp.

National Labor Relations Board - Board Decisions

Dec 10, 1952

101 N.L.R.B. 944 (N.L.R.B. 1952)

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NORMA MINING CORPORATION AND PAUL WARD AND PRESTON WARD
D/B/A WARD BROTHERS ' COAL COMPANY and H . C. WILLIAMSON
NORMA MINING CORPORATION and CLAUDE E. MABE
NORMA MINING CORPORATION AND H . G. MCCARTY , MRS. MILDREO
HOOKER, AND MRS. L. MCGLOTHLIN D/B/A ALFREDTON COAL COM-
PANY and Roy ARTRIP . Cases Nos. 5-CA-419, 5-CA-4II0, and
5-CA-4I1. December 10, 1952
Decision and Order
On January 24, 1952, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents, other than Norma Mining Corporation, herein called
Norma, had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner further
found that Norma had not engaged in any of the unfair labor prac-
tices alleged in the complaint and recommended that the complaint
be dismissed as to Norma. Thereafter, exceptions and supporting
briefs were filed by the General Counsel, Ward Brothers Coal Com-
pany, herein called Ward Brothers, Alfredton Coal Company, herein
called Alfredton, and Claude E. Mabe, herein called Mabe.1
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner insofar as they are consistent with
this Decision and Order.
1. The Trial Examiner has found that Norma's lessees, Ward
Brothers, Alfredton, and Mabe,2 are independent contractors. He
concludes, therefore, that their employees are not employees of Norma
and that Norma cannot be held responsible for any unfair labor prac-
tices committed against such employees. We cannot agree with this
conclusion.
We find it unnecessary to determine whether the leases between
Norma and its lessees establish the latter as independent contractors,
' The requests for oral argument made by Ward Brothers and Alfredton are hereby
denied , as the record , including the exceptions and briefs , in our opinion adequately presents
the issues and positions of the parties.
2 Mabe began operations as a partnership under the name of Industrial Constructors.
The partnership subsequently dissolved but Mabe continued to operate the mine until
the lease was canceled, as noted below.
101 NLRB No. 159.
NORMA MINING CORPORATION 945
because our examination of the record convinces us that Norma and
its lessees are joint employers of the employees involved in this pro-
ceeding. Our finding in this respect is based upon the economic
relationship between Norma and its lessees, and the control Norma
exercises through the lessees on the miners here involved.
With regard to the economic relationship, the record reveals that
Norma and its lessees together constitute a single integrated coal
business. The lessees and the miners in the leased mines constitute
the labor force which mines the coal and conveys it to Norma's tipple.
Thereafter, tipple employees clean, grade, and oil the coal and load
it for shipment to Norma's customers. Clearly without the work
force at the mines Norma could not remain in business.
At the hearing B. W. Jennings, Norma's president, admitted
Norma's vital concern for the work force in the leased mines when
he testified that on February 1, 1951, Norma gave voluntarily to the
lessees a price increase of 25 cents per ton. When asked the reason
for this increase, Jennings replied that the wages of miners in the
area generally were raised $1.50 a day at that time, and the increase
to the lessees was granted so that they could raise the miners' wages
by the same amount. This reason was relied upon by Norma in an
application to the Office of Price Stabilization for a price increase
on its coal. The requested price increase was denied ; nevertheless,
Norma continued to pay its lessees the additional 25 cents per ton.
It is apparent that the price increase to the lessees was not motivated
by altruism. Instead, it was a practical economic necessity to keep
the miners on the job.
With regard to Norma's control of the miners, it is true, as the Trial
Examiner found, that it does not directly supervise them in their day-
to-day mining operations. Nevertheless, the ultimate control over
an employee-the power effectively to terminate his employment-is
vested in Norma and, as noted below, was exercised by Norma to de-
feat unionization of the leased mines. Under Norma's standard lease
either party may terminate the contract, without cause, after 30 days'
notice. Norma, however, retains the right to suspend further mining
operations on 24 hours' notice if it is unable to sell its coal at what it
believes to be "a reasonable profit." The lessees have no option to con-
tinue mining and dispose of their coal elsewhere. Thus, if Norma,,
acting completely on its own, decides the coal market is unfavorable,
it can close down all of the mines and effectively deprive the miners
of employment with only 24 hours' notice. For the foregoing reasons,
and upon the entire record, we are convinced and find that Norma* s
control over the miners in the leased mine compels a holding that
Norma and its lessees are joint employers of the employees here
involved.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. We agree with the Trial Examiner's finding that Norma, Ward
Brothers, and Alfredton are engaged in interstate commerce within
the meaning of the Act. Clearly Norma is so engaged 3 In view of
our findings that Norma's lessees, including Mabe, are joint employers
with Norma of the employees involved in this proceeding, it is un-
necessary to consider separately the commerce showing of the lessees.4
3. We agree with the Trial Examiner's finding that Ward Brothers
violated Section 8 (a) (1) and (3) of the Act by threatening to shut
down its mine if the Union came in, and by shutting down its mine on
January 29,1951, and laying off the 12 miners employed there. How-
ever, unlike the Trial Examiner, we also find Norma liable for these
unfair labor practices.
Harve Williamson, whom the Trial Examiner has credited, testi-
fied that on January 29, 1951, the day Ward Brothers closed, Preston
Ward told him that he heard that the men were organizing. When
Williamson admitted that that was true and that he had been elected
president of the Union, Ward went on to say that McCall, an officer
of Norma, had stated that if this was the case Williamson "would have
to go down the road or they [Ward Brothers] would, one or the other."
The Trial Examiner also credited testimony of Williamson and one
of his fellow miners that in a conversation with Preston Ward, some-
time late in March 1951, Williamson said that he knew that the shut-
down was inspired by Norma, and Ward replied, "Yes, they got us
into that and then let us down."
Other witnesses whom the Trial Examiner has credited also testified
that they were told by the Ward brothers that Norma was responsible
for closing of the mine and keeping it closed. Thus witness Sparks
testified that when he asked Paul Ward to take the men back 10 days
after the mine closed, Ward replied, "Bill McCall won't let us work."
Based upon his determination that the relationship between Norma
and its lessees was solely that of independent contractors, the Trial
Examiner concluded that the foregoing testimony was hearsay as to
Norma and could not serve as a basis for any finding against Norma.
However, we have found that Norma and its lessees stand in the po-
sition of joint employers. Under these circumstances the statements
of the Ward brothers concerning the part Norma played in the closing
of their mine are clearly available against Norma, and establish be-
yond question that this action, which the Trial Examiner has found
was designed primarily to defeat the Union, was directed by Norma
and carried out by Ward Brothers. In the circumstances both Re-
spondents violated Section 8 (a) (1) and (3) of the Act.
Stanialaus Implement and Hardware Company, Ltd., 91 NLRB 618.
'Cf. Emerson d Stevens Mfg. Co., and Spitler Axe and Tool Company, 95 NLRB 964;
Manhattan Shirt Company, 84 NLRB 100.
NORMA MINING CORPORATION 947
4. We agree with the Trial Examiner's finding that the discharge
of Roy Artrip was violative of Section 8 (a) (1) and (3) of the Act.
However, unlike the Trial Examiner, we find that Norma as well as
Alfredton was responsible for this unlawful discharge.
Clyde Hooker, Alfredton's mine superintendent, admitted at the
hearing that on January 22, 1951, he asked Artrip, who he knew was
interested in the Union, if he had been working with a field representa-
tive of the United Mine Workers. Artrip admitted that he had been.
During this same conversation Hooker gave Artrip an order for his
final pay and told him that his services were no longer required. The
Trial Examiner has found that according to Artrip, whom he credits,
Hooker advanced no reason for the discharge except that it had been
directed by "McCarty, one of Alfredton's officers." The record re-
veals, however, that Artrip actually testified that Hooker said, "I
have an order [discharge] for you from Frank." Upon the entire
record we are convinced and find that the person Artrip referred to
was Benjamin Franklin McGlothlin, an officer in Norma, and not
McCarty, an officer of Al f redton. Artrip testified that he understood
the reference was to McGlothlin; Hooker was not sure that he had
not mentioned McGlothlin in his conversation with Artrip; and
McGlothlin, who often visited the Alfredton mine, was known there
as "Frank." The record does not reveal McCarty's first name. Al-
though he was called as a witness twice during the hearing, on both
occasions he gave his name as H. G. McCarty.
5. As we have concluded that Mabe, like Ward Brothers and Alfred-
ton, was a joint employer with Norma, we cannot accept the Trial
Examiner's conclusion that his employees were not employees of
Norma, nor can we accept his recommendation that the complaint be
dismissed insofar as it alleges that Norma's closing of Mabe's mine
was discriminatory within the meaning of Section 8 (a) (1) and (3)
of the Act.
Mabe, as noted above, started mining as a partnership under the
name of Industrial Constructors. His partners subsequently with-
drew and he continued operations, doing some of the mining himself,
and hiring four others to help him. At the time that the lease was
executed with Norma, he pointed out to Bill McCall of Norma that
Industrial Constructors could not meet the lease requirement that it
mine 50 tons of coal per day. According to undenied testimony of
Mahe, McCall replied, "Just skip that, you don't have to produce 50
tons per day."
The last 3 weeks of December 1950 and the first week of January
1951, Mabe's mine was closed because of mechanical difficulties and he
contemplated giving up the lease. However, Jennings, president of
Norma, persuaded him not to do so, and sold him a Diesel motor and
242305-53-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some drill bits to enable him to start mining again. A week or two
later, according to Mabe, Jennings asked if he had been passing out
union cards. When Mabe admitted that he had, Jennings, according
to Mabe's testimony, advised Mabe that if he joined the Union he would
have to pay a 30 cents royalty on coal. According to Mabe, Jennings
said, "It'd be best for you to keep out of it." At the hearing Jennings
conceded that Mabe's recollection of this meeting was substantially
correct, but he could not recall that Mabe at that time stated that he
had been passing out union cards.
On January 28, 1951, Mabe and the miners who worked for him
attended a union meeting and joined the United Mine Workers, as did
most of the men who were working for Ward Brothers and Alfredton.
Two days later Jennings visited Mabe's mine and after inspecting it,
according to Mabe, the following conversation took place :
... He asked me how I was in this place and how I was there,
and how about concerning my equipment. In just a few minutes
he said : "Do you want to sell ?"
I said : "No, I don't want to sell."
"Well," he says, "You'll just have to quit and pull it."
I says : "Mr. Jennings," I say : "you pull it. If you want any-
body to pull it, you pull it," I says.
So I says : "Mr. Jennings, what are you going to do about that
little Diesel outfit I bought from you and Mr. McCall and what
I've got paid on it?"
Mr. Jennings says : "We're going to take it down here and stor-
age it up and I'm going to keep what you paid on it for the use
of it."
So Mr. Jennings turned and walks right on down the drift.
I says : "Mr. Jennings, I know why you're taking this action
against me."
So Mr. Jennings walked on.
Q. Did he answer you?
A. No, sir, he didn't make no answer.
On the same day Norma sent to Broom, one of Mabe's former partners,
a formal notice canceling the lease and forbidding Broom or his agents
to go on to or remain on the mine property. The reason for the termi-
nation assigned in the notice was "you have failed to produce the pre-
scribed minimum tonnage and have abandoned the leased premises and
have failed to work and develop the mine steadily and continually;
and [breached] other covenants contained in said contract."
Mabe further testified :
Just about a week after they shut me down, about a week after
the 30th of January after they shut me down, I came up to Sea-
NORMA MINING CORPORATION 949
board and Mr. Jennings was going up towards his house. I called
him back down the road. I said : "Mr. Jennings, what about going
back to work?"
Mr. Jennings says : "You could have been working up here if
you hadn't fooled with the Union." And he turned and went on
home.
At the hearing Jennings testified that on January 30 he told Mabe
that the lease was being canceled because Mabe was not mining coal
properly, and was endangering a permanent air course. He conceded
that at the end of the conversation Mabe said, "I know why you are
doing this." Jennings also admitted having a further conversation
with Mabe about a week after the lease was canceled, but denied that
there was any mention of the Union. With regard to this conversa-
tion he testified, "I probably said : `Claude, if you'd have done the right
thing and looked after that, you could have been working every day."'
He explained that by the expression "looked after that" he meant
proper mining procedure.
The Trial Examiner made no credibility findings with respect to
the conflicting testimony of Mabe and Jennings. However, viewed
against the background of Norma's conduct at the other mines, we
consider Mabe's version the most credible. Thus, we have found
that the record established that shortly after Artrip's interest in the
Union became known at the Alfredton mine, an officer of Norma
ordered and procured his discharge. Again, the very day after
Mabe and the other miners joined the Union, Norma closed down
Ward Brothers to prevent unionization of its miners. On the follow-
ing day Mabe's lease was canceled. In these circumstances it ap-
pears most likely, and we find, as the General Counsel argues, that
the cancellation of Mabe's lease by Norma was part and parcel of
Norma's plan to deprive the miners in the leased mines of the rights
guaranteed them by Section 7 of the Act. It follows, therefore, that
in canceling Mabe's lease on January 30, 1951, Norma violated Sec-
tion 8 (a) (1) and (3) of the Act with respect to the miners em-
ployed in Mabe's mine.
The Remedy
We have determined that Norma and Alfredton are both respon-
sible for the discriminatory discharge of Roy Artrip. We have also
determined that Norma and Ward Brothers are both responsible for
the discriminatory closing of the Ward Brothers mine . Accordingly,
in each case we shall direct that both of the parties responsible jointly
and severally make the affected employees whole, in the manner pre-
scribed in the Intermediate Report , for any loss of pay they may
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have suffered from the time of the discrimination against them until
they were reinstated .5
With regard to Mabe, the record establishes that after his lease was
discriminatorily canceled he removed his equipment from his mine,
abandoned all mining operations, and moved out of the State. As
Norma and not Mabe was responsible for the discrimination against
Mabe's miners, we cannot order Mabe to resume operations. How-
ever, we shall order that Norma offer to renew Mabe's lease on the
same terms as those which prevailed before the discriminatory can-
cellation of January 30, 1951. Further, we shall order that Norma
make whole the employees who were working in Mabe's mine on that
date, for any loss of pay they may have suffered by reason of Norma's
discrimination against them from the date of the cancellation of the
lease until Norma makes a proper offer to reinstate it. In accord-
ance with Board policy, however, we will not require Norma to pay
any back pay for the period from January 24, 1952, when the Inter-
mediate Report was issued recommending dismissal of the complaint
as to Norma, to the date of this Decision and Order.6
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. Respondent Norma Mining Corporation, Richlands, Virginia,
its agents, successors, and assigns, shall:
(a) Cease and desist from :
(1) Discouraging membership in any labor organization of its
employees or of the employees of its coemployers by causing their
discharge or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of
employment.
(2) In any other manner interfering with, restraining, or coercing
its employees or the employees of its coemployers in the exercise of
their rights to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their
own choosing and to engage in collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
5 The record establishes , as the Trial Examiner has found , that the miners of Ward
Brothers were reinstated on March 12 , 1951 , and that Artrip was reinstated by Alfredton
on March 20, 1951.
4 Back pay for Mabe's miners shall be computed in the same manner as the Trial
Examiner has prescribed in the Intermediate Report for the employees who were dis-
criminated against at the Ward Brothers and Alfredton mines.
NORMA MINING CORPORATION 951
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Jointly and severally with H. G. McCarty, Mrs. Mildred
Hooker, and Mrs. L. McGlothlin d/b/a Alfredton Coal Company,
snake whole Roy Artrip for any loss of pay he may have suffered
because of the discrimination against him. Any back pay due shall
be computed in the maner set forth in the section of the Intermediate
Report entitled "The Remedy."
(2) Jointly and severally with Paul Ward and Preston Ward
d/b/a Ward Brothers' Coal Company, make whole A. W. White,
Arthur Jeter, Irvin Stacy, James Barrett, Edgar Altizer, Grant Gil-
bert, Graham Smith, Roy Lane, Grat McGlothlin, B. J. McGlothlin,
Joe Sparks, and H. C. Williamson for any loss of pay they may have
suffered because of the discrimination against them. Any back pay
due shall be computed in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(3) Offer to lease to Claude E. Mabe the mining property which
he formerly operated on the upper Seaboard coal seam on the same
terms and conditions as prevailed when the lease covering this prop-
erty was discriminatorily canceled on January 30, 1951.
(4) Make whole Ned Caudill, Arvil Caudill, Frank White, and
Henry Nipper for any loss of pay they may have suffered because
of the discrimination against them. Any back pay due shall be,
computed in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(5) Post at its office and tipple in Richlands, Virginia, in con-
spicuous places where notices to employees are customarily posted,
copies of the notice attached hereto, and marked "Appendix A." 7
Copies of said notice, to be furnished by the Regional Director for
the Fifth Region, shall, after being duly signed by the Respondent,
be posted by it immediately upon receipt thereof and maintained by
it for a period of sixty (60) consecutive days thereafter. Reason-
able steps shall be taken to insure that such notices are not altered,
defaced, or covered by any other material.
(6) Notify the Regional Director for the Fifth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2. The Respondents H. G. McCarty, Mrs. Mildred Hooker, and Mrs.
L. McGlothlin d/b/a Alfredton Coal Company, Richlands, Virginia,
their agents, successors, and assigns shall :
(a) Cease and desist from:
In the event this Order is enforced by a Decree of the United States Court of Appeals,
there shall be inserted in each of the notices attached hereto as Appendix A, B, and C
for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Discouraging membership in any labor organization of their
employees by causing their discharge or by discriminating in any
other manner in regard to their hire or tenure of employment or any
term or condition of employment.
(2) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their rights to self-organization,
to form, join, or assist any labor organization, to bargain collectively
through representatives of their own choosing and to engage in col-
lective bargaining or other mutual aid or protection, and to refrain
from any or all such activities except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Jointly and severally with Norma Mining Corporation make
whole Roy Artrip for any loss of pay he may have suffered because
of the discrimination against him. Any back pay due shall be com-
puted in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(2) Post at their mine in Richlands, Virginia, in conspicuous places
where notices to employees are customarily posted, copies of the notice
attached hei eto, and marked "Appendix B." Copies of said notice,
to be furnished by the Regional Director for the Fifth Region, shall,
after being duly signed by the Respondents, be posted by them im-
mediately upon receipt thereof and maintained by them for a period
of sixty (60) consecutive days thereafter. Reasonable steps shall
be taken to insure that such notices are not altered, defaced, or cov-
ered by any other material.
(3) Notify the Regional Director for the Fifth Region in writing
within ten (10) days of the date of this Order what steps the Re-
spondents have taken to comply herewith.
3. The Respondents Paul Ward and Preston Ward, d/b/a Ward
Brothers' Coal Company, Richlands, Virginia, their agents, successors,
and assigns, shall :
(a) Cease and desist from :
(1) Discouraging membership in any labor organization of their
employees by causing their discharge or by discriminating in any other
manner in regard to their hire or tenure of employment or any term
or condition of employment.
(2) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form, join, or assist any labor organization, to bargain collectively
through representatives of their own choosing and to engage in col-
NORMA MINING CORPORATION 953
lective bargaining or other mutual aid or protection , or to refrain
from any and all such activities except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section
8 (a) (3) of the Act.
Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Jointly and severally with Norma Mining Corporation make
whole A. W. White, Arthur Jeter, Irvin Stacy , James Barrett, Edgar
Altizer, Grant Gilbert, Graham Smith, Roy Lane, Grat McGlothin,
B. J. McGlothlin, Joe Sparks , and H . C. Williamson for any loss
of pay they may have suffered because of the discrimination against
them. Any back pay due shall be computed in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(2) Post at their mine in Richlands , Virginia, in conspicuous places
where notices to employees are customarily posted, copies of the notice
attached hereto and marked "Appendix C." Copies of said notice,
to be furnished by the Regional Director for the Fifth Region , shall,
after being duly signed by the Respondents, be posted by them im-
mediately upon receipt thereof and maintained by them for a period of
sixty ( 60) consecutive days thereafter . Reasonable steps shall be
taken to insure that such notices are not altered, defaced , or covered
by any other material.
(3) Notify the Regional Director for the Fifth Region in writing,
within ten ( 10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, notice is hereby given that :
WE WILL NOT discourage membership in any labor organization
of our employees, or of the employees of any operator of a mine
leased from us, by cancellation of any lease, by procuring any dis-
charge, or otherwise, nor will we in any manner interfere with,
restrain, or coerce any employees in the exercise of their rights to
self-organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and to re-
frain from any and all such activities except to the extent that
such right may be affected by an agreement requiring membership
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a labor organization as a condition of employment as author-
ized in Section 8 (a) (3) of the Act.
WE wiLL MAKE wgoLE the following named individuals for any
loss of pay suffered as a result of the discrimination against them:
Edgar Altizer Grat McGlothlin Ned Caudill
James Barrett B. J. McGlothlin Arvil Caudill
Grant Gilbert Joe Sparks Frank White
Arthur Jeter Irvin Stacy Henry Nipper
Roy Lane A.W. White Roy Artrip
Graham Smith H. C. Williamson
WE WILL OFFER to lease to Claude E. Mabe the mining property
which he formerly operated on the upper Seaboard coal seam on
the same terms and conditions as prevailed when the lease cover-
ing this property was discriminatorily canceled on January 30,
1951.
All our employees are free to become or remain members of any
labor organization. We will not discriminate in regard to- hire or
tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any
labor organization.
NORMA MINING CORPORATION,
Employer.
Dated ----------------- By --------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form, join, or assist any labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
NORMA MINING CORPORATION 955
WE WILL MAKE WHOLE the employee named below for any loss
of pay suffered as a result of the discrimination against him.
Roy Artrip
All our employees are free to become or remain members of any
labor organization. We will not discriminate in regard to hire or
tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of
any labor organization.
ALFREDTON COAL COMPANY,
Employer.
Dated -------------------- By -------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form, join, or assist any labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
WE' WILL MAKE WHOLE the employees named below for any loss
of pay suffered as a result of the discrimination against them.
Edgar Altizer Roy Lane Joe Sparks
James Barrett Graham Smith Irvin Stacy
Grant Gilbert Grat McGlothlin A. W. White
Arthur Jeter B. J. McGlothlin H. C. Williamson
All our employees are free to become or remain members of any
labor organization . We will not discriminate in regard to hire or
tenure of employment or any term or condition of employment against
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any employee because of membership in or activity on behalf of
any labor organization.
WARD BROTHERS COAL COMPANY,
Employer.
Dated ------------ By -------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed in Case No. 5-CA-419 by H. C. Williamson , in Case
No. 5-CA-420 by Claude E. Mabe, and in Case No. 5-CA-421 by Roy Artrip,
herein called the charging parties, the General Counsel of the National Labor
Relations Board , herein called respectively the General Counsel and the Board,
by the Regional Director for the Fifth Region ( Baltimore , Maryland ), issued
his complaint dated September 6, 1951 ,' against Norma Mining Corporation,
herein called Respondent Norma , or Norma, and Paul Ward and Preston Ward
doing business as Ward Brothers ' Coal Company , herein called Respondent
Ward , or Ward , and H. G. McCarty , Mrs. Mildred Hooker , and Mrs. L. Mc-
Glothlin doing business as Alfredton Coal Company, herein called Respondent
Alfredton , or Alfredton , alleging that Respondents Norma, Ward , and Alfredton
had engaged in and were engaging in certain unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7 ) of the National Labor Relations Act, as amended , 61 Stat. 136, herein
called the Act. Copies of the charges , the complaint , and a notice of hearing
were duly served upon Respondents and the charging parties.
With respect to the unfair labor practices the complaint alleged in substance
that ( 1) Respondents Norma and Ward on or about January 29, 1951 , suspended
the coal mining operations of Ward and terminated the employment of A. W.
White, Arthur Jeter, Irvin Stacy, James Barrett , Edgar Altizer , Grant Gilbert,
Graham Smith , Roy Lane, Grat McGlothlin , B. J. McGlothlin, Joe Sparks, and
H. C. Williamson , and thereafter failed and refused to reinstate them; (2)
Respondents Norma and Alfredton on or about January 22, 1951 , terminated
the employment of Roy Artrip and thereafter failed and refused to reinstate
him; and (3) Respondent Norma on or about January 30, 1951, closed down a
coal mine operated by Claude Mabe and terminated the employment of Ned
Caudill, Arvil Caudill, Frank White , and Henry Nipper , and subsequently failed
and refused to permit Mabe to reopen the said coal mine and failed or refused
to reinstate the said employees. Respondents are alleged to have performed
these acts because of the union activities of these employees . The complaint
further alleged that Respondents by threats of reprisal or force or promise of
benefit warned these employees against joining the Union , questioned them
concerning their union membership and activity , and engaged in other acts
of interference , restraint , and coercion in the exercise of rights guaranteed them
by Section 7 of the Act.
Respondents filed their joint answer dated September 14, 1951 , in which they
admitted certain allegations of the complaint with respect to the nature of
their business but denied that they had engaged in any unfair labor practices.
'Pursuant to an order of the Regional Director of the same date the cases were con-
solidated for the purpose of hearing.
NORMA MINING CORPORATION 957
Pursuant to notice a hearing was held on October 16, 17, 18, and 19, 1951,
at Richlands, Virginia , before Horace A. Ruckel, the undersigned Trial Examiner
duly appointed by the Chief Trial Examiner . The General Counsel and Re-
spondents 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 upon the issues was afforded all parties . On motion of the
General Counsel , the complaint was amended to allege that after Artrip's dis-
charge on or about January 22, 1951, and his subsequent reinstatement, he
was again discriminatorily discharged on September 10, 1951. The Trial Ex-
aminer granted a motion of counsel for Respondents to dismiss the complaint
as to the September 10 discharge.
At the conclusion of the hearing the Trial Examiner granted a motion by the
General Counsel to conform the pleadings to the proof in formal matters and
reserved ruling on Respondents ' motion to dismiss the complaint . This motion
is disposed of by the recommendations hereinafter made. The parties were
given until November 8 to file briefs with the Trial Examiner. Subsequently the
time within which to file briefs was extended by the Chief Trial Examiner to
December 7. On this date the General Counsel and the Respondents filed briefs.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FAOr
I THE BUSINESS OF RESPONDENTS
A. Respondent Norma
Norma was incorporated during the latter part of 1949 or the early part of
1950. It has its principal office and place of business at Richlands , Virginia,
where it is engaged in processing and shipping coal . The coal is all obtained
from the upper Seaboard coal seam, in Virginia , on which Norma has a lease.
Norma, in turn, leases certain of the mines on the Seaboard seam to nine or more
companies and individuals, including Ward, Alfredton, and Industrial Construc-
tors of which Mabe, one of the charging parties , is said to be an agent or partner.
During the approximate year prior to the hearing it has received from its
various lessees coal amounting in value to approximately $471,000, all of which
was sold to an agent in Ohio. Some of this coal was shipped within the State
of Virginia , but the greater part amounting to at least 90 percent was shipped
outside the State . According to the provisions of the leases , all or most of the
coal mined by the producing companies is delivered to Norma's tipple at Rich-
lands and from there distributed by railroad.
B. Respondent Alfredton
During the approximate year of its operations Respondent Alfredton pur-
chased equipment and supplies amounting to approximately $21,000 consisting
principally of a locomotive, steel rails, and ties, of which approximately $18,000
was purchased within the State of Virginia and the remainder outside the State.
During the same period Alfredton mined coal in the approximate amount of
$80,000, all of which it turned over to Norma.
C. Respondent Ward
Ward is a partnership which during the events hereinafter related operated
Ward Brothers' Mine No. L It ceased operations on this mine and sublet it in
April 1951. Since June of that year it has operated Ward Brothers' No. 2. Dur-
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lag the approximate year prior to the hearing Ward produced and delivered to
Norma coal in the approximate value of $25,575.
Respondent Norma admits that it is engaged in commerce within the meaning
of the Act, but Ward and Alfredton assert that they are not. It is apparent from
the above facts that if the operations of Alfredton or Ward were shut down be-
cause of a labor dispute or for other reasons, the supply of coal to Norma would
be interrupted and Norma's commerce materially affected. I find that all three
Respondents are engaged in commerce within the meaning of the Act.
D. Respondents and Industrial Constructors are independent contractors
Consideration must be given, however, to the contract-lease existing between
Norma and Alfredton, and between Norma and Ward, as well as between Norma
and Industrial Constructors, to determine the relationship of the parties. These
leases are all a standard form of lease and they differ in no essential respect.
Respondents contend that by reason of the provisions of the lease and the actual
operations of companies , Ward, Alfredton, and Industrial Constructors are inde-
pendent contractors and that Norma may not be held responsible for any unfair
labor practices committed by them. The General Counsel contends, on the other
hand, that the lease arrangement is merely a convenient fiction and that in fact
Norma has such a control over the operations of Ward, Alfredton, and Industrial
Constructors, or Mabe, as to make Norma the employer of the employees hired by
them.
In these leases Ward, Alfredton, and Industrial Constructors are designated
independent contractors. They agree to perform all work and furnish all
labor, materials, apparatus (including tipples, chutes, docks, out buildings
and/or other similar necessary structures), machinery, tools and supplies, to
mine and to move, transport, and place in the tipple or screening plant of
Respondent Norma all the coal from the specified seam in, upon, and under the
specific portion of land designated in the lease. Ward, Alfredton, and Indus-
trial Constructors agree to enter upon the leased premises and, in accordance
with plans and specifications approved by Norma, drive an entry or entries into
the seam of coal, work and mine all coal in the seam of a specified thickness,
and remove the coal and transport it to the screening plant of Norma. In prac-
tice the miners are hired by Alfredton, Ward, and Industrial Constructors, or
Mabe, are paid by them, and are subject to their exclusive orders and directions
in the performance of work. Alfredton, Norma, and Industrial Constructors,
and all other companies operating under lease, pay all taxes and assessments
levied against the privilege of mining coal or against their own property and
the income accruing to them as well as applicable social security, unemployment
compensation, and withholding taxes for the employees.
There is no evidence in this record that there is any direction or control by
Norma of the work performed by employees of Alfredton, Ward, and Industrial
Constructors, or other lessees. On occasion, engineers of Norma visit the mines
of the independent contractors for the purpose of setting underground pointers,
indicating the directions in which the coal should be mined, and to ascertain the
amount of coal mined, and to determine the condition of the coal in place and
to see that it is mined according to sound mining practices.
I am convinced that the relationship between Norma, the lessor, and the
lessees, is a genuine independent-contractor relationship. It is immaterial why
Norma prefers to do business in this fashion rather than to mine coal itself,
so long as the relationship established is a bona fide one and not one designed
to conceal the existence of a real employer-employee relationship. The critical
factor in this sort of a relationship is whether Norma in fact directs or super-
NORMA MINING CORPORATION 959
vises, directly or indirectly, the work of the employees of the other employers.
1 find no evidence in the record of any such direction or supervision. Another
important consideration is whether the lessees are dependent upon Norma for
the materials or machinery used in the production of coal. It is clear that under
provisions of the leases, as well as in practice, all machinery and materials
necessary in the operation of the mines are purchased and paid for by the lessees
themselves, and are owned by them and not by Norma. This fact, it seems to me,
is sufficient of itself to distinguish this case from S. A. Kendall,' cited by the
General Counsel in his brief, where the lessor owned the machinery and materials.
E. Charging party Mabe
Case No. 5-CA-420, that of Norma Mining Corporation and Claude Mabe, neces-
sitates separate consideration. Mabe, a miner by occupation, was a partner
along with one B. W. Broom, doing business as Industrial Constructors. Another
partner seems to have been one Jeter. The lease in this instance was between
Norma and Industrial Constructors. According to Mabe's own testimony, he,
Broom, and Jeter were to work the mine and share the profits. Shortly after
they had started operations Broom withdrew and moved out of the neighborhood.
Later he returned, gave up any further attempts to work the mine, and author-
ized Mabe to dispose of all the mining equipment belonging to Broom or Indus-
trial Constructors. Jeter also withdrew, going to work for Ward, leaving Mabe
to carry on alone. Industrial Constructors and/or Mabe employed four miners,
to wit : Ned Caudill, Arvil Caudill, Frank White, and Henry Nipper. These four
employees and Mabe himself joined the Union the latter part of January 1951.
A few days later the lease to Industrial Constructors was canceled by Norma.
According to Norma this was done because of improper mining practices indulged
In by Mabe. According to the General Counsel it was done because of the union
activities of Mabe and his four employees.
I do not find it necessary to resolve this matter on its merits, for I find
that in this set of facts Industrial Constructors, or Mabe, was an independent
contractor and an employer in the same sense that Alfredton and Ward were,
and that the two Caudills, White, and Nipper were Mabe's employees, and not
Norma 's. Since I have found that Alfredton and Ward are independent con-
tractors, their employees are not employees of Norma and Norma is not re-
sponsible for any unfair labor practices committed by Alfredton and Ward.
It is hereinafter recommended that Case No. 5-CA-419 and Case No. 5-CA-421
be dismissed as to Norma. The effect, of course , is to dismiss Norma entirely
as a party respondent.
II. THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America is a labor organization admitting employees
of Respondent Wards Alfredton, and Mabe to membership.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharges ; other interference, restraint, and coercion
1. At the Alfredton mine ; the discharge of Roy Artrip
The Union began to organize the employees of Alfredton and Ward during
the early part of January 1951. Roy Artrip, employed by Alfredton, was one
2 38 NLRB 1071.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of those who first became interested in this movement . He obtained union
application cards for distribution , although the record does not support the
contention of the General Counsel , as set forth in its brief, that he engaged
in "extensive" union activities prior to his employment by Alfredton on Janu-
ary 16, or, for that matter, before January 28 when a meeting was held at
which various employees of Alfredton and Ward , as well as those of Mabe
and Mahe himself , joined the Union . Artrip testified that although he dis-
cussed the Union with other employees , he did not obtain the signed applica-
tions of other employees until January 28.
Artrip had previously worked for 2 days laying track in the Alfredton mine.
He then quit his employment and was subsequently reemployed at the same
work on January 16. On one occasion between January 16 and 22 , according
to the admission of Clyde Hooker, Alfredton 's mine superintendent , Hooker
had a conversation with Artrip in which Artrip asked Hooker if he thought
Alfredton would sign up with the Union and Hooker replied that he did not
think Alfredton could operate under a union scale at the price they were then
getting for coal.
At the conclusion of the day's work on January 22, 1951, as Artrip was
coming out of the mine, Hooker called him to one side and handed him an order
for his final pay and said that his services were no longer needed. According
to Artrip's testimony, which I credit, he asked Hooker if his work had been
satisfactory and Hooker said that it had been and gave him no reason for his
discharge except that it had been directed by McCarty, one of Alfredton's
officers. According to Hooker's own admission while testifying, he asked
Artrip on this occasion if Artrip had been working with a field representative
of the Union and Artrip admitted that he had been.
Respondent contends that it let Artrip go because it had no further need for
a full-time trackman and that Artrip's employment as such was of a tempo-
rary nature. It is not contended that anything was said one way or the other
as to the permanency of Artrip 's employment when he was hired on January 16.
After Artrip's discharge, Hooker did considerable of the track work, that is
the extension of track up to the face of the cut in the coal. In this he was as-
sisted by Settles and Andres, and still later by Dewey Brown. Hooker's testi-
mony was that he did not need a full-time trackman until after Alfredton got
a motor on February 8 or 10. Artrip was called back to work on March 12 and
up to the final termination of his employment on September 20 worked practically
full time as a trackman. In the meantime, that is from the obtaining of the
motor to the time of Artrip's reemployment , this work was done, for the most
part, by Brown who was hired shortly after February 10. I find Hooker's
testimony inconsistent in that although he stated he did not need a full-time
trackman until after Respondent obtained its motor, clearly implying that he
did have need of such a man when it did obtain the motor, he contradicted this
later by saying that at no time, even after Artrip's reemployment on March 20,
did he in fact need a full-time trackman. Hooker testified that the reason he
rehired Artrip on March 12 was because of the filing of the charge in the instant
case and its investigation by an examiner of the Board who requested that
Artrip be reinstated until the controversy was settled.
There are further contradictions in Hooker's testimony. He testified, for
example, that since he did not need a full-time trackman, he was faced with a
choice of laying off either Artrip or Brown. Hooker admitted later while testi-
fying that Brown was not hired until after Artrip was discharged. He then
said that instead of the choice lying between Artrip and Brown it lay between
Artrip and Settles, who came to work for Respondent about a month before
NORMA MINING CORPORATION 961
Artrip. However, Hooker apparently overlooked the fact that an employee,
Andres, was hired on January 19, 3 days before Artrip's discharge. Hooker
testified that Andres was hired, among other reasons, to operate the motor which
Respondent acquired a month later. It does not appear why Artrip should have
not been kept to help lay the track, which it is admitted Settles and Andres did
along with Hooker, and to run the motor when acquired, rather than hiring
Andres on January 19. I conclude that Andres was hired in anticipation of
Artrip's discharge.
Conclusions
I am satisfied from the record that there was no appreciable difference in the
capabilities of any of these employees. It is admitted that any of them could
lay track, load coal, and do various other tasks required of miners, and it is
my opinion that they could do so with substantially the same proficiency. The
contradictions in Hooker's testimony as to his need of a full-time trackman and
his selection of Artrip for discharge in preference to another employee, the
fact that Artrip was not told when discharged by Hooker that Respondent did
not need a full-time trackman any longer, taken by themselves create a serious
doubt as to the validity of the reason assigned for Artrip's discharge. This
doubt is resolved in my mind by the fact that Hooker had knowledge that Artrip
was active in forming the Union and questioned Artrip at the time he was dis-
charged concerning his association with a union organizer. I am persuaded and
find that Respondent Alfredton discharged Artrip because of his union interest
and activity and not for legitimate business considerations. In so doing, Re-
spondent Alfredton discouraged membership in the Union and interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. The discharges at the Ward mine
Organization of the employees of Ward and Alfredton continued to gather mo-
mentum and, as has been found, a meeting of the miners in the vicinity, includ-
ing those employed by Respondents, was held on January 28. H. C. Williamson,
employed by Ward, was elected president of a newly constituted local
Joe Sparks testified that on the following morning as the men were going to
work, Preston Ward, one of the partners of Respondent Ward, told him that he
had heard that the men had organized and when told by Sparks that was true,
stated : "Well, we can't pay the price . . . before I'd fool with it, I'll take my
diesel to Bear Wallow and run a sawmill with it." Ward testified simply that
he did not recall having this conversation with Sparks. A. W. White, when he
came out of the mine that evening, according to his testimony, was told by Ward
that he had heard a lot of "union talk" around the mine and asked White if he
knew anything about it, to which White replied that he did. On another oc-
casion the same day, according to White, Ward had another conversation with
him in which he told White that he had heard that Williamson "had been ap-
pointed president of that local down there," to which White replied that William-
son had been elected, not appointed. Ward concluded the conversation by stat-
ing, according to White : "We'll have to get rid of Harve [Williamson] ; he'll
have to go down the road or we will have to give up our lease."
Ward testified that he did not recall having had the first conversation testified
to by White and denied the second. Williamson testified that Preston Ward
the same day told him that he had heard that the men were organizing and
Williamson admitted that was true and that he had been elected president. Ac-
cording to Williamson, Ward went on to say that McCall, an officer of Norma,
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that if that was true, he, Williamson, "would have to go down the road or
they [Ward] would, one or the other." Ward admitted having a conversation
with Williamson in which he asked the latter if he had been elected president
of the Union and when told that he had saying that Ward could not pay union
wages. He denied stating that either Williamson or Respondent would have
to go down the road.
I believe and find that Preston Ward made, in substance, the statements at-
tributed to him by Sparks, White, and Williamson.
That evening when the men came out of the mine they were told that the
mine was shutting down forthwith. The evidence is in conflict as to what
reasons Ward gave for his announcement. According to Williamson, he told
Ward : "Now, Paul, you all go ahead ; don't quit on my account; go ahead and
work; forget about me." Ward replied, according to Williamson, that he had
"called the whole thing off" and that he would sell his equipment rather than
have "anymore headaches with us." Other employees who testified corroborated
substantially Williamson's testimony.
Ward testified that he told the men the reason that the Respondent was
shutting down was because the road from the mine to Norma's tipple was bad
and that until it was fixed they would have to suspend operations and might
even sell the mine ; that "everything" was "just a headache."
In another conversation, Paul Ward told White, according to the latter's testi-
mony, as he was coming out of the mine : "Whitey, it looks like our job is tore
up." When White asked him why, Ward made no reply but walked away. A
day or so following the closing of the mine and the layoff of the employees, Paul
Ward met Williamson and gave him his own pay check as well as those of sev-
eral other employees. On this occasion he had a conversation with Williamson
in which he said, according to Williamson, "you should have not went down
there Sunday and caused all this trouble," and that Ward "would haul coal and
work over at Universal to keep from having anything to do with the Union."
Sunday, January 28, was the day of the union meeting at which Williamson was
elected president. Ward testified that he did not recall the nature of the con-
versation with Williamson but that nothing was said about the Union or union
activities.
I find that Ward made in substance the statements attributed to him and that
he in effect stated that the mine was closing down because of the advent of the
Union.
About 10 days after the mine shutdown, Grat McGlothlin and Sparks returned
to the vicinity of the mine apparently to see if it was being operated. They
were soon joined by Artrip and the three of them built a fire and sat around it
until Paul Ward came out of the mine and sat down on a pile of timber about
35 feet from them and opened his lunch. The three men agreed that Sparks
should go over and speak to Ward about going back to work. Sparks asked Ward
to take the men back to work and Ward replied, according to Sparks, that McCall,
an officer of Norma, would not let Respondent Ward do so. I accept this testi-
mony as evidence that the mine was not shut down, as Ward contends, because
of the condition of the road from the Ward mine to the Norma tipple. If this
were in fact the reason , Ward's reference to McCall would be pointless. But I
do not accept it as evidence of what, if anything, McCall said to Ward, since it is
hearsay. Ward admitted having this conversation with Sparks and telling him
that Ward had not decided whether to resume work , that he personally would
rather not do so, and that Ward was pulling the track out of the mine and was
going to try to sell the mine . He did not specifically deny mentioning McCall's
NORMA MINING CORPORATION 963
name but he did deny mentioning the Union and union activities. Sparks did
not testify that they were specifically mentioned.
McGlothlin, Williamson, and the other employees were subsequently called
back to work at the mine on March 12. Both Williamson and McGlothlin testi-
fied that thereafter in a conversation between them and Preston Ward the latter
volunteered the sentiment that they were all getting along "mighty well before
this trouble occurred." Williamson asserted that he knew who inspired the
closing and that it was "over here at the [Norma] tipple." Ward replied, ac-
cording to Williamson and McGlothlin: "Yes, they got us into that and then let
us down." I accept this statement of Ward's as additional evidence that Ward
closed down the mine because of the advent of the Union but not as evidence
that Respondent Norma prompted it.
Ward admitted having the above conversation with Williamson and McGlothlin
but denied any statement with reference to McCall. I accept the testimony
of the two employees on this point as being in accord with the fact, and I
discredit Ward's denial.
As a result of the shutdown of the Ward mine the employment of the follow-
ing employees named in the complaint was terminated: A. W. White, Arthur
Jeter, Irvin Stacy, James Barrett, Edgar Altizer, Grant Gilbert, Graham Smith,
Roy Lane, Grat McGlothlin, B. J. McGlothlin, Joe Sparks, and H. C. Williamson.
The original charge in this complaint was filed on February 15, 1951. The mine
was reopened on February 12, but only Smith and Stacy were notified to return
to work at this time. The others were notified to return on March 12. Al-
though some of them were given work other than that which they had performed
prior to the shutdown, I do not find on the evidence viewed as a whole that the
work assigned was not substantially equivalent to that which they had been
doing prior to the shutdown. Respondent contends that it did not notify the
employees other than Stacy and Smith to return to work on February 12 be-
cause they did not apply for reemployment on that day. The evidence is, how-
ever, that after prior shutdowns word was got to the employees when the mine
reopened, Williamson on occasion being used to spread the news. I do not find,
in view of the conversations between Williamson, Sparks, McGlothlin, and Ward,
the purport of which was undoubtedly communicated to the other employees,
and past practice, that it was incumbent upon the employees to make further
application for employment on the day the mine reopened. When these three
asked Ward for their jobs back sometime prior to the reopening, as has been
related, they were told that the reopening was questionable.
As has been suggested above, the reason advanced by Ward for shutting
down the mine on January 29 was the alleged impassability of the road from
the mine to Norma's tipple. Respondent Ward used two trucks to carry coal
over this road, but only one at a time, Paul Ward generally doing the driving.
Paul Ward testified that the road began to get bad in December 1950 and
that immediately prior to the shutdown on January 29 it was too bad to use
although Respondent kept hauling coal over it as long as possible, improving
it the best it could by filling up the ruts with rocks. During the months
of November and December the mine had been shut down for several short
periods. Preston Ward testified that the road was "just as bad as it could
be" during most of the winter of 1950-1951, what with rain, snow, and hard
freezes, and that they experienced constant difficulty in hauling the coal along
the road. Once during a big snow, apparently in November, the road was
closed for about a week. During the week immediately preceding January 29,
1951, there had been a snow which continued on the ground for 2 or 3 days
242305-53-62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and disappeared as a result of a rain . On Friday, January 26, according
to Ward, the road was "almost past traveling over" although they continued
to haul coal , an axle being broken in the process. On Tuesday, January 30,
the day after the shutdown, it is admitted that at least two loads of coal above
ground were hauled down the road to Norma's tipple. About February 8,
during the shutdown, Ward again began to haul stone and used about 10
truckloads which they put in the ruts at the worst places. According to Paul
Ward, after reopening on February 12 the road appeared to be in good shape
but when the ground thawed out it got bad again and they had to keep
filling up the ruts . The mine kept operating although the road was "bad
as could be."
It is apparent from the record that the road leading from Respondent Ward's
mine to Norma's tipple was chronically bad during the winter of 1950-1951.
Just how bad it was, and at what time it was the worst, is very difficult of
determination. On the evidence as a whole I do not find that the road was
in any worse shape on January 29, the day of the shutdown, than it had been
for several days previously and little if any worse than it had been all the
previous winter or than it was on occasion after the reopening on February 12.
Respondent's efforts were devoted to continuous work on the road and it is
difficult to see why these efforts should have been abandoned as they were,
when the mine was shut down on Monday, January 29, the day following the
union organization meeting, rather than on the previous Friday or indeed pre-
vious even to that time. Granted that the shut down in November was for
approximately a week when there was a heavy snow, the shut down on Jan-
uary 29 lasted for 2 weeks following the melting of what was apparently a
less severe snow.
I am persuaded that while Respondent might reasonably have shut down
its mine at various times during the winter because of the road, the decision
to shut down on January 29 was precipitated by Respondent's admitted knowl-
edge of the union meeting the previous day and its determination to break
the union movement at its inception. In my opinion, the "headache" which
Ward referred to on January 29 as the reason for shutting down the mine
was caused by the Union and not by the weather. I think that Ward would
have stated in unequivocal language that the condition of the road was the reason
for the shut down, if in fact that was the case. Moreover, after the mine was
reopened on February 12 the employees named in the complaint were not rein-
stated until a month later and then only after charges of unfair labor practice
had been filed. I believe that, absent the Union, all the employees would have
been notified that the mine was reopening and would have been offered reem-
ployment. I find that by threatening to shut down its mine if the Union came
in, and by shutting it down on January 29, 1951, and laying off A. W. White,
Arthur Jeter, Irvin Stacy, James Barrett, Edgar Altizer, Grant Gilbert, Graham
Smith, Roy Lane, Grat McGlothlin, B. J. McGlothlin, Joe Sparks, and H. C.
Williamson, Respondent discouraged membership in the Union and interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 'UPON COMMERCE
The activities of Respondent Ward and Respondent Alfredton, set forth in
section III, above, occurring in connection with the operations of Respondents
Ward, Alfredton, and Norma, described in section I, above, have a close, intimate,
NORMA MINING CORPORATION 965
and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondents Ward and Alfredton have engaged in certain
unfair labor practices, the undersigned will recommend that they cease and
desist therefrom and take certain affirmative action which I find will effectuate
the policies of the Act.
It has been found that Respondent Alfredton discriminatorily discharged Roy
Artrip on January 22, 1951, and that Respondent Ward on January 29, 1951, dis-
criminatorily laid off or discharged A. W. White, Arthur Jeter, Irvin Stacy,
James Barrett, Edgar Altizer, Grant Gilbert, Graham Smith, Roy Lane, Grat
McGlothlin, B. J. McGlothlin, Joe Sparks, and H. C. Williamson, thereby discour-
aging their activity on behalf of the Union. Respondent Alfredton and Respond-
ent Ward reinstated these employees on March 12, 1951, giving them substantially
equivalent employment. In order to effectuate the policies of the Act, I will
recommend that Respondents make these employees whole for any loss of pay
they may have suffered by reason of the Respondents' discrimination against
them, by payment to each of them of a sum of money equal to that which he
normally would have earned as wages from the date of his discriminatory layoff
or discharge to the date of Respondents' reinstatement of them on March 12, 1951,
less their net earnings during said period.'
In accordance with the Woolworth 4 decision it will be recommended that Re-
spondents, upon reasonable request, make available to the Board and its agents
all records pertinent to the analysis of the amount due as back pay.
Upon the basis of the foregoing findings of fact and on the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America is a labor organization within the meaning
of Section 2 (5) of the Act.
2. Respondent Alfredton, by discriminating in regard to the hire and tenure
of employment of Roy Artrip, and Respondent Ward, by discriminating in regard
to the hire and tenure of employment of A. W. White, Arthur Jeter, Irvin Stacy,
James Barrett, Edgar Altizer, Grant Gilbert, Graham Smith, Roy Lane, Grat
McGlothlin, B. J. McGlothlin, Joe Sparks, and H. C. Williamson, thereby dis-
couraging membership in a labor organization, have engaged in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing their employees in the rights
guaranteed in Section 7 of the Act, Respondents Alfredton and Ward have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent Norma is not an employer of any of the employees named in
the complaint.
[Recommendations omitted from publication in this volume.]
See Crossett Lumber Company, 8 NLRB 440.
F. W. Woolworth Company, 90 NLRB 289.