Red Diamond Mining Co., Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1942

44 N.L.R.B. 1234 (N.L.R.B. 1942)

In the Matter of RED DIAMOND MINING COMPANY, INC., CHARLES F.
DEBARDELEBEN, INDIVIDUALLY, PRINCE DEBARDELEBEN, INDIVIDU-
ALLY, CHARLES F. DEBARDELEBEN AND PRINCE DEBARDELEBEN, D/B/A
RED DIAMOND MINING COMPANY and UNITED MINE WORKERS OF
AMERICA, DISTRICT 20 and RED DIAMOND, L` MPLOYEES ASSOCIATION,
PARTY TO A CONTRACT
Case No. C-2192.-Decided October 16, 1942
Jurisdiction : mining industry.
Unfair Labor Practices
In General: partnership held to be successor to corporation, and both, as well as
partners individually, held jointly and severally liable for unfair labor prac-
tices.
Interference, Restraint, and Coercion: activities of supervisors in threatening the
employees with discharge if they joined the union, in declaring the union would
never succeed in organizing the employees, and in warning the employees that
if they joined an organization other than the company-dominated one, the
mines would cease operating; permission by respondent to company-dominated
organization to conduct a poll on company time and property on, whether the
employees favored-the "outside" union.
Company-dominated Union:, circulation of petition for formation on company
time and property; precipitate grant of exclusive recognition, closed-shop con-
tract, and check-off, without a pay-roll check on majority representation claim
and with virtually no preliminary negotiating or bargaining; check-off of dues
from wages of non-members as well as members, and without the individual
authorizations required under the contract; activities in the organization by
supervisory employees; disparity of treatment-barring "outside" union from
property at request of company-dominated organization while at the same
time authorizing latter to conduct a poll among the employees on company
time and property, and prior thereto permitting circulation of petition for
formation of company-dominated organization on company time and property ;
contract with coinpany-dominated organizition hetid' ille'g it a'nd void.
Dcscrnniination: employee held to have been • discharged for careless shooting
of coal in violation of safety rules and practice and a safety statute,, and not
for union activity ; allegation of amended complaint alleging discriminatory
discharge accordingly dismissed.
Remedial Orders: issued against corporation, successor partnership, and part-
ners individually, requiring them to cease and desist unfair labor practices,
disestablish dominated-organization and abrogate contract entered into with
dominated organization.
Mr. Alexander E. Wilson,, Jr., for the Board.
Mr. Borden Burr , of Birmingham , Ala., for the respondents.
Messrs. William E. Mitch and Frank L. Parsons , of Birmingham,
Ala., for the Union.
Mr. Herman J. DeKoven, of counsel to the Board.
44 N. L. R. B., No 234.
1234
0
RED DIAMOND MINING COMPANY, E C. - 1235
DECISION
AND
ORDER
STATEMENT, OF' THE CASE
Upon charges duly filed by United Mine Workers of America,
District 20, herein called the Union, the National Labor Relations
Board, 'herein called the Board, by the Regional Director for the
Tenth Region (Atlanta, Georgia), issued its complaint, dated Jan-
nary 5, 1942, against Red Diamond Mining Company, Birmingham,
Alabama,, described therein as a corporation and herein called the
corporation, alleging that it had engaged in and,was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Na-
tional, Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, together with notice of hearing thereon,
were duly served upon Red Diamond Mining Company, the Union,
and Red Diamond Employees, Association, herein called the Asso-
ciation. -
On January 16, 1942, Red Diamond Mining Company, of Birming-
ham, Alabama, a partnership, herein called the partnership,-filed an
answer to the complaint in which it alleged that the corporation had,
been dissolved on December 1, 1941, and that since then the business'
has been conducted by the partnership', and denied that the partner-
ship had engaged in any unfair labor practices. On January 16,,
1942, the partnership also filed a motion for a bill of particulars.
- Pursuant to notice, a hearing was held in Birmingham, Alabama,
from January 19 to 23, 1942, inclusive, before J. J. Fitzpatrick, the
Trial, Examiner duly.designated by-the Chief Trial Examiner. The
Board, the -partnership, and the `-Union were represented and par-
ticipated in the hearing. At the opening of the hearing, counsel
for the Board moved to amend the complaint by specifying the names
of officials, agents, and supervisory employees, referred to therein.
This motion was granted over the objection of the partnership.
The partnership renewed its motion for a bill ' of particulars and
also moved for a continuance; both motions were denied. In the
early part of the hearing, counsel for ' the Board moved to amend
the complaint by substituting the partnership for the corporation
as respondent, and the Union moved to amend the-charge in the same
espect. These motions were granted over the objection of the part-
nership. The partnership then moved to dismiss the charge and
complaint, as amended, which motion was denied. Thereupon, the
N
1236 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
partnership again moved for a continuance , and this motion was also
denied. At the conclusion of the Board's case , counsel for the Board,,
moved that the ' pleadings be conformed to the proof in regard to
names, dates , and other minor matters . This motion was granted
without objection . Rulings weremade by the Trial Examiner during
the course of the hearing on other motions and on objections to.the
admission of evidence . After the ,hearing, the partnership and the
Union filed briefs with the Trial Examiner.
On March 3, 1942, the Trial Examiner entered an order, copies
of which were duly served upon Red Diamond Mining Company,
counsel for the partnership , the Union , and the Association , in which
he reversed his previous rulings permitting the amendment of the
charge and complaint by substituting the partnership for the cor-
poration as respondent , and set aside the hearing previously held,
with the proviso that all pleadings remain part of the record. On
March 11, 1942, the Union filed an amended charge alleging the
commission of unfair labor practices by Red Diamond Mining Com-
pany, Inc., and/or Charles F. DeBardeleben , individually , and/or
Prince DeBardeleben, individually , and/or Charles F. DeBardeleben
and Prince DeBardeleben , partners doing business as Red Diamond
Mining Company . On March 13, 1942, the Acting Regional Director
for the Tenth Region filed with the Trial Examiner a motion for
leave to file an amended complaint naming, as respondents, Red
Diamond Mining , Company, Inc., Charles F. DeBardeleben, indi-
vidually, Prince DeBardeleben , individually , and Charles F. DeBarde-
leben and Prince DeBardeleben , partners doing business as Red
Diamond Mining Company . On March 16, 1942, copies of the
amended charge and the motion for leave to file an amended com-
plaint were served upon Charles F. DeBardeleben , as representative
of the corporation , and upon Charles F. DeBardeleben • and Prince
DeBardeleben , individually and as - partners , the Urtion , and the
Association . On March 20 , 1942, Charles F. and Prince DeBarde-
leben, individually and as partners , filed written objections to the
filing of , the amended charge and the proposed amended complaint
on the ground , among others , that this would result in the bringing
in of entirely new and different parties as respondents . On March
23, 1942, the Trial Examiner , by written order, overruled these ob-
jections and authorized the filing of the proposed amended complaint.
On March 28,1942, the Board, through the Acting Regional Director
for the Tenth Region, issued an amended complaint against Red
Diamond Mining Company , Inc.,, Charles F. DeBardeleben , indi-
vidually, Prince DeBardeleben, individually, and Charles F. DeBarde-
leben and Prince DeBardeleben , partners doing business as Red Dia-
I This appears to be the correct name of the co, poration
RED DIAMOND MINING COMPANY, INC. 1237
mond Mining Company, herein called the respondents. Copies of
the amended complaint, together with notice of hearing thereon, were
duly served upon Charles F. DeBardeleben', as representative of the
corporation, and upon Charles F. DeBardeleben and Prince DeBarde-
leben , individually and 'as partners, the Union, and the Association.
In respect to the unfair labor practices, the amended complaint
alleged in substance that : (1) the corporation, and/or Charles F.
DeBardeleben and/or Prince DeBardeleben, on or about July 1, 1937,
dominated and interfered with the formation of the Association, and
that thereafter the respondents dominated and interfered, with ,the
administration of and contributed support to the Association; (2) on
or about July 26, 1941, the corporation, and/or Charles F. DeBardele-
ben and/or Prince' DeBardeleben discharged Roy docker, and that
thereafter the respondents refused to reinstate him, because of his
membership, in and activities on behalf of.a labor organization; (3)
the respondents advised the employees to withdraw from or not to
join the Union, warned them that the mines would be closed and
threatened them with discharge if they persisted in activities on be-
half of the Union, and requested each employee to vote on whether
or not he desired to be represented by the Union for the purpose of
collective bargaining; and (4) by the foregoing ncts the respondents
interfered with, restrained, and coerced their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
On April 13, 1942, Charles F. DeBardeleben, on behalf of the cor-
poration, filed a special appearance and a motion to strike the
amended charge and amended complaint on the ground, among others,
that the corporation, having been dissolved, was not Subject to suit.
On the same date, Charles F. and Prince DeBardeleben, individually
and as partners, filed special appearances and a motion to strike the '
amended charge and the amended complaint on the grounds, among
others, that the corporation could not be made a party to the pro-
ceeding,,tblat the amended complaint resulted in an entire change of
parties, and that the partnership, as well as Charles F. and Prince
DeBardeleben individually, were not responsible for any acts com-
mitted by the corporation. Charles F. and Prince DeBardeleben, in-
dividually and as partners, also filed an answer to the amended com-
plaint denying the commission of the unfair labor practices alleged
therein.
Pursuant to notice, a second hearing was held in Birmingham,
Alabama, on April 16, 1942, before J. J. Fitzpatrick, the Trial Exami-
ner. The Board, Charles F. and Prince DeBardeleben, individually
and as partners, and the Union were represented and participated in
the hearing. Counsel for the Board, the respondents, and the Union
stipulated that the testimony and exhibits taken and introduced at
1238 DECISIONS ,OF NATIONAL' LABOR RELATIONS' BOARD
the first hearing should be considered as having been taken and'intro-
duced at the second hearing. At the opening of the second hearing,
Charles F. ' DeBardeleben, appearing specially, ' through counsel; as a
former stockholder and officer of the corporation, objected to the
receipt in evidence of, proof of service on the corporation of the
amended complaint as well as the motions and orders preliminary
thereto, on 'the ground, among, others,'that the corporation, having
been dissolved prior to the filing of the_original and amended com-
plaints, could not be made a party to this proceeding and could not
accept service. This objection was overruled.- The motions-previously
filed by the respondents to strike the amended charge and the
amended complaint were also denied. Rulings were made by the
Trial Examiner during the course of the second hearing on other
motions and objections to the, admission of evidence. After the sec-
ond hearing, the respondents filed' d brief with the Trial Examiner.
The contention of the' respondents that the corporation, which was
'dissolved on December 1, 1941, cannot properly. be included as a party
herein, is predicated on the assumption that the pertinent Alabama
statute 2 dealing with suits against dissolved corporations authorizes
only the consummation of, suits pending at the time of dissolution and
does not authorize new suits against a dissolved corporation. This
contention is without merit. The Alabama statute in question pro-
vides that corporations dissolved "by forfeiture or by any other cause;3
.except by judicial decree, exist as bodies corporate for a term of 5 years
after dissolution for the purpose, among others, "of prosecuting or
defending suits," and it further provides that the directors of the
corporation shall be trustees thereof,'with power to sue for and recover
iii the corporate name the debts and property of the dissolved corpora-
tion, and shall be jointly and severally liable to the corporation's credi-
tors and stockholders to the, extent, of the property which,inay come
into their hands. The statute thus authorizes suits against a corpora-
tion for a period of 5 years after its dissolution and makes no dis-
tinction between suits pending at the time of dissolution and suits
instituted after dissolution but within the prescribed period. Nor
has any such distinction been recognized by the courts of Alabama,
as contended by the respondents; on the-contrary, the institution of a
suit against a corporation after its dissolution and within the statu-
tory period has been repeatedly recognized as proper by the Supreme
Court of Alabama 4
2 Title 10 , Section 110 , Code of Alabama, 1940
The respondent corporation was dissolved tsy the action of its two stockholders , Charles
Y. and Prince DeBardeleben , pursuant to the provisions of Title 10 , Section 101, Code of
Alabama, 1940, and hence conies within the purview of the statute in question
4Pankey v Lippman, 187 Ala 199, 65 So 771 (1914 ) , 48th Street Inv Co v Fairfield-
American Nat' Bank, 223 Ala 44, 134 So .803 (1931 ) ; George D. Witt Shoe Co v . Mills,
RED DIAMOND MINING COMPANY, INC. 1239
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues was afforded
all parties at the' first and second hearings. The Board has reviewed
the rulings of the Trial Examiner at both hearings and finds that no
prejudicial errors were committed. The rulings of the Trial Examiner
at both hearings, and all orders of the Trial Examiner, are hereby
affirmed.
On May 15,1942, the Trial Examiner issued his Intermediate Report,
copies of which were duly served upon, the parties, in which he found
that the respondents had engaged in and were engaging in unfair
labor practices ,.within the meaning of'Sedtion 8 (1) and (3) and Sec-
tion 2 (6) and (7) of the Act, and recommended that the respondents
cease and desist therefrom and take certain affirmative action to effec-,
tuate the policies of the Act. He further recommended that the
amended complaint be dismissed insofar as it alleged that the respond-
ents had, engaged ,in and, were engaging 'in unfair labor practices
within the meaning of Section 8 (2) of the Act. ' Thereafter, Charles
F. and Prince DeBardeleben, individually and as partners, and the
Union filed exceptions to the Intermediate Report and briefs. No
request for oral argument was made by any of the parties.
The Board has considered the briefs and exceptions filed by the
respondents and the Union and, except insofar as they are inconsistent
with the findings and conclusions set forth below, finds the exceptions
to have merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
For some years 'prior to December 1, 1941 , Red Diamond Mining
Company, Inc., an Alabama corporation, was engaged in the'mining,
production, sale, and distribution of coal , with its principal office in
Birmingham , Alabama, and with mines and offices near Leeds, Ala-
bama. The officers and directors of the corporation were Charles F.
224 Ala 500 , 140 So . 578 (1932 ) ; Em Parte Davis . 230 Ala 668, 162 So 306 (1935)
'Covington v Robinson , 6 So. (2 ) 421 (1942 ) Cf National Labor Relations Board v South-
port Petroleum Co, 117 F. (2d) 90 (C C A.5); aff'd, 315 U S 100
The respondents rely upon the statement of the Alabama Supreme Court in Goodwyn v.
Union Springs Guano Co , 228 Ala 173, 153 So. 246 (1934), that "the very purpose of [the
statute in question] was to preserve the life of the corporation for certain purposes, among
others, that it might prosecute and defend pending suits and wind up its business "
However, this case involved a suit, pending at the time of dissolution, and the court made
the foregoing statement in answer to the contention 'of the dissolved corporation that
under the circumstances of that case the'statute in question did not alter the common law
principle that'the dissolution of a corporation abated all pending actions by or against it.
It is cleat that the court did not state, expressly or impliedly, that the statute in question
was applicable to pending suits alone.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- ,
DeBardeleben, president, Prince DeBardeleben, vice president, and
Hooper Morrow, secretary-treasurer. Charles F. and Prince DeBar-
deleben were the sole stockholders. , Charles F. DeBardeleben was the
active .manager of the business of the corporation and determined its
labor policies. Morrow was in charge of the office force.
On December 1, 1941, Charles F. and Prince DeBardeleben dissolved
the corporation and thereafter the business was conducted as a partner-
ship, under the name of Red Diamond Mining Company, with Charles
F. and Prince DeBardeleben as the sole partners. Charles F. De-
Bardeleben continued as the active manager of the business and re-
mained in control of its labor policies. Morrow became an employee
of the partnership and continued in charge of the office force. The
business was carried on as before, with no change in location, opera-
tions, or personnel. Charles F. DeBardeleben testified that he con-
sidered the 1-year contract entered into on March' 1, 1941, between
the Association and the corporation as having been in effect as between
the Association and the partnership and that, as manager of the part-
nership, he complied with its terms. The partnership, in its answer
to the original complaint, admitted that it "succeeded" the cor-
poration.
The foregoing clearly demonstrates, and we find, that the formal
structural change effected on December 1, 1941, resulted in no change
in the employer-employee relationship, with which we are principally
concerned; that the partnership was the successor to the corporation;
and that these two entities have been the alter egos of Charles F. and
Prince DeBardeleben. We accordingly find that, for the purposes
of the Act, the corporation, the partnership, Charles F. DeBardeleben,
and Prince DeBardeleben are jointly and severally liable for the unfair
labor practices involved herein.5
The partnership, as well as Charles F. and Prince •DeBardelebem
individually, admit that a substantial portion of the materials and
equipment purchased by the corporation and the partnership has been
shipped from points outside the State of Alabama, and that a sub-
stantial portion of the coal produced by the corporation and the part-
nership has been shipped to points outside the State of Alabama. The
partnership admits that it is engaged in commerce within the meaning
of the Act.°
6 Cf. National Labor Relations Boa) it V. Baldwin Locomotive Works, 128 F. (2d) 39
(C. C. A 3) ; National Labor Relations Board v Cotten , 105 F. ( 2d) 179 (C C. A 6) ;
National Labor, Relations Board v . Southport Petroleum Co, 117 F ( 2d) 90 (C C A. 5),
aff'd, 315 U S . 100; Matter of Carpenter Baking Company and Auto Truck Drivers Joint
Council No 50 (A. F L ), 29 N L R B. 60 ; Matter of Isaac Sch4eber, et at and United
Hatters, Cap and Millinery Workers' International Union, affiliated with , the American
Federation of Labor, 26 N. L R B 937. .
° As already noted above , the business conducted by the partnership is vi no wise dif-
ferent from that conducted by the corporation , its predecessor
RED DIAMOND MINING COMPANY, INC.
H. THE ORGANIZATIONS INVOLVED
1241
United Mine Workers of America, District 20, is a labor organization
affiliated with the- Congress of Industrial Organizations admitting to
membership employees of the respondents.
Red Diamond Employees Association is an unaffiliated labor organ-
ization admitting to membership only employees of the respondents.
III. THE UNFAIR LABOR PRACTICES
A. Domination of, interference with, and support to, the Association;
interference, restraint, and coercion
In 1937, prior to the formation of the Association, the Union com-
menced an organizational drive among the respondent's 7 employees.
-In July 1937, while this drive was in progress, J. Milton West and
Edwin C. Watkins, Jr., discussed with various other employees the
matter of forming an unaffiliated organization for the admitted pur-
pose, among others, of keeping the Union out of the respondent's
mines. At the same time, Watkins, without objection from the re-
spondent, circulated among the employees throughout the mines,
during working hours, a petition for the formation of the Association
and secured the signatures of approximately 90 percent of the em-
ployees. The testimony of Watkins, as well as of some of the re-
spondent's officials and supervisory employees, is to the effect that
the respondent had no knowledge of the circulation of this petition,
and the Trial Examiner so found. In view of the extensiveness of,
the circulation, and the number of employees solicited,' which more
strongly support a contrary inference, we are unable to believe such
testimony and we find that the respondent had knowledge of and
.permitted the circulation of the petition for the formation of the
Association on company time and property. After the circulation of
the petition, 'Watkins and West, together with Herbert Thomason, a
brother of L. A. Thomason, foreman of the night shift at one of the
respondent's mines, and three other employees, called on Borden Burr,
the respondent's attorney, for assistance in organizing the Association.
After questioning the group as to why they wished to form an associa-
tion and "who was ' in charge of it," Burr stated that he could not
represent them because of his connection with the respondent. At
the group's request, Burr gave them the'names of several attorneys,
including one Ross. Herbert Thomason communicated with Ross and
requested him to discuss with Watkins the details regarding the forma-
tion of-the Association. Thereafter, Ross and Watkins' discussed the
'The term "respondent" in Section III herein refers to the respondent corporation.
1242 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
organizational plans, and Ross drafted a constitution and bylaws for
the Association.
The constitution and bylaws of the Association were adopted at its
first meeting held on August 9, 1937. Membership in the Association
was limited to employees of the respondent, other than those in a
clerical or supervisory capacity, who )^yere not members of another
labor organi'zation'. Provision was made for the annual election of the
governing body of the Association composed of its officers and com-
mitteemen. The holding-of office, as well as membership on the v:irious
committees, was restricted to those employed by the respondent for at
least 6 months. Regular monthly meetings and the payment of dues
were provided for.
,After the adoption of the constitution and bylaws, the employees
at the meeting of August 9 elected officers and committmen. Watkins,
who acted as chairman of the meeting, was elected president of the.
Association. West and Herbert Thomason were elected to the griev-
ance committee.
At an Association meeting„held, on or, about August 23, 1937, a pro-
posed contract with 'the respondent was read and approved. - By its
terms, this contract was to remain in effect until August 13, 1938. It
provided, among other things, for recognition of the Association as
the-exclusive representative of the respondent's employees, a closed
shop, and a check-off of dues from "the wages of such of its employees
who are members in good standing of said Association and who have
heretofore or shall hereafter during the pendency of this contract
notify the company in writing to make such check-off." Shortly after
the approval of the contract by the Association, it was presented to
Charles F. DeBardeleben, president of the respondent, by a committee
of the Association which showed him Association membership cards
which the committee stated numbered 166.$ A day or- two after its
submission, and without further negotiation or bargaining or any,pay-
roll,check by the respondent on the Association's claim, that it-replie-
sented a majority of the employees, the contract was signed by the
parties.s This contract was renewed several times, without any
change in its terms, and,was still in effect on the date of the second
hearing herein.70 After the execution of the original contract, the
It appeals that the Association had approximately 152 signed membeiship application
cards at this time, and that there were from 175 to 200 persons in the respondent's emp'oy
9 While the contract is dated August 13, 1937, it appears that it was signed in the latter
part of rAugust 1937.
ipThe last renewed contract expired on March 1, 1942. However, the Association and
,the respondent partnership thereafter agreed that that contract should continue in effect
for a certain period pending the execution of a new contract when the Association re-
quested the respondent partnership to negotiate with it for a new contract, the partnership
advised it that, in view of the pending complaint herein, it would require new proof of
majority representation before negotiating with it. Thereupon, the Association, in April
1942,' secured the signatures of employees to new membership- cards. These new cards
11
RED, DIAMOND MINING COMPANY, INC. . - 1243
respondents checked off dues from the wages of all employees eligible
to membership in the Association, including those who had-not signed
Association membership cards. The provision in the contracts for
individual authorization for the check-off from the employees was not
complied with.''
, • After, ,the,. ,Association was, launched, the respondent ^ promoted
Watkins, We's't, and Herbert Thomason, its three leading organizers.
They were first elevated to positions as shift lenders, hereinafter found
to be supervisory in character, and were later promoted to positions as
foremen. While serving in a supervisory capacity, they continued
their activities in the Association. Thus, Watkins, who was promoted
to the position of shift leader in April 1938, while president of the
Association, and who also acted as foreman for a short while in 1938,
continued to serve as president of the Association until he was perma-
nently appointed foreman in the spring of 1939. West, who was made
shift leader a few months after the Association was organized, con-
tinued as a member of the Association's grievance committee, to which
he had been elected at,the Association's first meeting, until he was
appointed foreman in September 1939. Herbert Thomason, who was
a shift leader from approximately the early part of 1939 to April 1942,
when he was made foreman, served on the committee of the Association
which, in March 1942, conferred with the respondent partnership
regarding the execution of a new contract and entered into in agree-
ment with it under which the contract which had expired on March 1,
1942, was to continue in effect pending negotiations for the new
contract.
The record discloses that shift leaders are in charge of mine enti•ies
and direct the work of other employees. While Charles F. DeBar-
deleben, president of the respondent, testified to the effect that shift
leaders do not have the authority to hire and discharge, it appears
from the testimony of G. L. Hammett, who was a shift leader, that
they are authorized, to and do lay off employees. Also, according to
the testimony of Hammett and J. Milton West, who was both a shift
leader and a foreman,- shift leaders have the authority to recommend
the discharge of employees. It also appears that the employees re-
gard shift leaders as supervisors. Upon the basis.of the entire record,
we find, as did the Trial Examiner, that shift leaders are supervisory
employees.
In May 1941, a new organizational drive at the respondent's mines
was initiated by the Union and continued through the summer of 1941.
were checked against the partnership's pay roll by a representative of the Alabama Depart-
ment of Industrial Relations, who advised the partnership that signatures of 152 of the
207 eligible employees appeared on the new cards. The partnership thereupon commenced
its negotiations with the Association for a new contract, 'the terms of which had not been
agreed upon as of the date of the second heating herein
n Not until April 1942 , were authorizations for the check-off secured from employees
1244 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This new campaign met with expressed opposition by the respondent.
Roy Blocker, an employee who joined the Union and was actively en-
gaged in securing applications for the Union among the respondent's
employees, testified that on or about July 14, 1941, when he told Fore-
man Watkins that he was planning to join the Union, Watkins advised
him that he had "better be careful" because "there are some of them
here that will do anything to you," and that he should° "not . . . let
anybody know." Watkins admitted that this conversation occurred
substantially as testified to by Blocker. Blocker further 'testified that
on-the following day, G. L. Hammett, his shift leader, aftersigning a
union application card solicited by Blocker, said.to Blocker : ""You
better watch your step, Louis Thomason [Blocker's foreman] told
me to watch you and run you off . . . if I could get something on
you . . .," and asked Blocker not to disclose the fact that Hammett
signed a union application card because "if they found out he signed a
card, they would run him off." Hammett admitted signing a union
application card 12 at Blocker-'s request,Nbut denied making the. fore-
going statements. Hammett further testified that Thomason did not
tell him to try to "catch [Blocker] so he could fire him," and Thomason's
testimony is to the same effect. However, upon the entire record, we
credit, as did the Trial Examiner, the testimony of Blocker and find
that Hammett made the statements in question substantially as testi-
fied to by Blocker. Also, according to Blocker's testimony, on or
about, July 18, 1941, during the course of a discussion of some union
literature among Foreman Thomason, Hammett, Joe Goss, an em-
ployee, and Blocker, Hammett asked Thomason if he thought the mine
would ever be organized, to which Thomason replied : "No. I would
fire my daddy and'granddaddy if they would sign a C. I. 0. card under
John Lewis' name." Thomason admitted participating in a discus-
sion of union literature at the time; but denied making the statement
attributed to him by Blocker, and Hammett's testimony is,also to the
effect that Thomason did not make such statement. Goss was not
called as a witness. We credit, as did the Trial Examiner, the testi-
mony of Blocker and find that Thomason made, in substance, the
foregoing statement.
In the latter part of July 1941, a meeting of all the employees was
held at the mine for the purpose of discussing a complaint with re-
spect to existing medical services. According to the testimony of
Johnithan Callaway, an employee, Superintendent Pierce, in address-
ing the employees at this meeting, stated that if they joined "any other
"The record discloses that Hammett joined the Union because be was planning to leave
the respondent for a position at a mine at Marvel , Alabama, which had been organized by
the Union ; that he was told that he could save the Union 's initiation fee,if he joined the
Union -when be did ; and that shortly after be joined the Union , be left the respondent's
employ and accepted the position at Marvel, Alabama.
RED DIAMOND MINING 'COMPANY, INC. 1245
organization," they would work only 35 hours a week and the respond-
ent' would be unable to meet the coal requirements of the Universal
Atlas Cement Company, its principal customer. Pierce, while ad-
mitting that he addressed the employees at this meeting, denied mak-
ing the statement attributed to him by Callaway, and Foreman Wat-
kins and Clay Mashburn, a "fire boss," 13 likewise testified that Pierce
did not:nlake such statement. Upon-the -basis. of the entire record,
we credit, as did the Trial Examiner, the testimony of Callaway and
find that Superintendent Pierce made the statement in question sub-
stantially as testified .to by Callaway.14 We further find that by "any
other organization" Pierce meant an organization other than the Asso-
ciation and that the employees so understood it.
Further to insure against the Union's, success , in organizing the
respondent's employees during the summer of 1941, the respondent
barred union organizers from its property. On one occasion, when
union organizers appeared at the mine, Superintendent Pierce called
the sheriff and complained that-the employees were being intimidated
by strangers. Two deputy sheriffs appeared and, after investigation,
advised Pierce that the union organizers were not intimidating the
employees. According to the testimony of Charles F. DeBardeleben,
• which we credit in this respect, the respondent's policy of barring
union organizers from its property was put into effect at the request
of. members of the Association.
Contrasted with the respondent's conduct towards the Union is the
treatment accorded by it to the Association. Thus, in the latter part
of July 1941, in the midst of its anti-union activities, the respondent
permitted Association representatives to conduct a poll among the
employees in the mine during working hours on whether they favored
the "C. I. O." Express permission for the taking of the poll was given
by Charles F. DeBardeleben and Superintendent Pierce to Milton
Green. who'was on one- of the ' Association's committees and later be-
came vice president of the Association. The poll- was conducted by
Green, Brad Coker, who was on the Association's bargaining and griev-
ance committees, and Sam Moore, a member of the Association. A
day or two after the poll, Green advised Superintendent Pierce that
139 employees voted against and 39 for the "C. I. 0." DeBardeleben
testified that lie did not know that Green was an Association repre-
sentative when he requested permission to take the poll, and DeBarde-
13 See Section III, B , infra, for a definition of the term "fire boss "
14 While the above finding is made without reliance thereon, it is to be noted that an
article appearing in the August 7, 1941, edition of a newspaper published in Birmingham,
Alabama, entitled "News Digest," which was introduced in evidence by the respondent as
having been circulated by the Union among the respondent's employees, makes mention of
a statement by Superintendent Pierce at a meeting of the. respondent's employees "last
week" that "if they elected to join the [Union], the [respondent] would close down the
mine "
1246 DECISIONS OF. `NATIONAL LABOR RELATIONS BOARD
leben and Pierce testified to the effect that the poll was sponsored by
Green as a personal project. We do not credit this testimony. The
record discloses that shortly prior to the request made by Green for
permission to conduct the poll, a committee of the Association com;
posed of Green and Charlie White- asked DeBardeleben to address
the Association 16 on the subject of belonging to the Union. It is thus
apparent that DeBardleben knew that Green was active in the affairs
of the Association and was an Association spokesman. Moreover,
the respondent had knowledge of the persons actively engaged in con-
ducting the poll.17 One of these, Coker, was on the Association's bar-
gaining and grievance committees, and a few months prior to the poll
he had signed, on behalf of the Association, a contract with the re-
spondent. The respondent thus knew of Coker's status as an-Associa-
tion representative. On the basis of the entire record, we find that
the poll was sponsored by representatives of the Association, and that
the respondent had knowledge thereof.
The Trial Examiner, after finding substantially the same facts as
are outlined above, concluded that while the respondent demonstrated
its favor for the Association and its hostility towards the Union and
there was some doubt as to the independent status, of the Association,
the evidence was insufficient to establish domination of or interference
with the administration of the Association by the` respondent. We
are unable to agree with this conclusion. The respondent gave initial
support to-the Association by permitting the circulation of a petition
for its formation on company time and property. Further to facili-
tate the successful launching of the Association`' and the frustration of
the organizational efforts of the-Union, to which, as manifested by the
respondent's subsequent conduct, the respondent was opposed, the
respondent, without a pay-roll check on the majority represeiitation
claim of the Association, and with virtually no preliminary negotia-
tion or bargaining, precipitately, granted the Association exclusive
recognition and a closed-shop contract. The action of the respondent
in checking off dues from the wages' of non-members `as well as mem-
bers, and without the individual authorizations for such check-off
"white was on the Association's bargaining and grievance committees and was one of
those who signed, on behalf of the Association, the'various contracts entered into with
the respondent, including the contract of March 1, 1941
1s DeBardeleben, in the course of his testimony, at times stated that the committee
requested him to address the Association and at other times indicated that he was re-
quested to address all the employees, also, while admitting that a "committee" composed
of Gieen and white asked him to deliver the address, DeBardeleben testified to the effect
that he did not know that Green was representing the Association Upon the basis of
Del'ardeleben s entire testimony, the activities in the Association of Green and White, and
the record as a whole, we believe that Gieen and white, as Association representatives,
requested DeBardeleben to address the Association and that DeBardeleben knew that
Green and white represented the Association, and we so find
"The 'poll was conducted among the employees throughout the mine Also, Foreman
Watkins admitted that he saw the ballots being circulated at the mine.
RED DIAMOND MINING COMPANY, INC. 1247
required under the contract, can only be interpreted as having been
motivated by a desire to insure the effectiveness of the Association.
Also, the Association,- almost from its inception, has been dominated
and' interfered with by the respondents through the activities in the
Association of supervisory employees. Further, substantial support
was given the Association by the respondent's expressions of hostility,
towards the Union. In threatening! the employees, with discharge if
they joined the Union, in openly declaring"that the Union would never,
succeed in organizing the respondent's employees, and in warning the
employees in effect that if they joined an organization other than the
Association the respondent's mines would cease operating, the respond-
ent - eloquently expressed its preference for the Association. The
respondent's favoritism towards and support of the Association is
further evidenced by the disparity in its treatment of the Union and
the Association. Thus, while barring the Union from-its property
at the request of the Association, the' respondent at the same time
authorized Association representatives to conduct a poll among the
employees at the mine during working hours, and prior to that time
permitted the circulation of a petition for the formation of the 'Asso-
ciation on company. time and property.
We find that the respondents have dominated and interfered with
the administration of and contributed support to the Association; and
that thereby, and by -the anti-union statements of Foreman Watkins,
Shift Leader Hammett, Foreman Thomason, and Superintendent
Pierce, outlined above, as well as by permitting the afore-mentioned
poll among their employees at the mine,l8 the respondents have inter-
fered with, restrained, and coerced their employees in the exercise of
the rights guaranteed in Section 7 of, the Act. We further find that
the contract of March 1, 1941, which, under an agreement between the
Association and the respondent partnership, was in effect on the date
of the second hearing herein, having been entered into with an organ-
ization unlawfully dominated, interfered with, and supported by the
respondent, is illegal and void.
B. The alleged discriminatory discharge
The amended complaint alleges that on or about July 26, 1941, the
respondent discharged Roy Blocker and that thereafter the respond-
ents refused to reinstate him because of his membership and activities
in the Union. The respondents contend that Blocker wastdiscliarged
'8 Cf Matter of Shell Oil Company, Inc and Oil Workers International Union, Local 367,
34 N. L. R B 866, enf'd, 128 F. (2d) 206 (C C A -5) ; Matter of Sunshine Mining Com-
pany and International Union of Mine, Mill and Smelter Workers, 7 N L It B, 1252,
enf'd as mod, 110 F (2d) 780 (C C A 9) ; Matter of McNeely it Price Company and
National Leather Workers Assoctiation, Local No 30, of the C 1 0, 6 N L ,R B 800,
enf'd as mod , 106 F (2d) 878 (C C A 3).
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for "shooting" coal in violation of the respondent's safety rules and
practice and an Alabama safety statute.
Blocker was first employed by the respondent in November 1937
and, except for a few months in 1938, worked cgntinuously thereafter
until his discharge on'July 28, 1941.- For some time prior to his
discharge, Blocker worked as a "shot firer" in charge of blasting or
"shooting" coal, which involves the drilling of holes in a slab of-coal,
tamping them with powder, and "touching off" the charge. Under
the respondents' safety rules and 1practice, which implement an' Ala-
bama safety statute," before touching off the charge, the shot firer is
required to block all entries to the' slab by stationing employees at
such entries who are to warn persons passing through the entries of
the contemplated shooting, and is further required to give a warning
call of "fire" just before shooting. '
On July 26, 1941, Blocker, assisted by another employee, shot 20
some coal at the upper end of- a slab which extended in an upward
direction for a distance of from 180 to 200 feet from the entry.
Shortly before the shot Was fired, Clay Mashburn, whose duties as,
"fire boss" 21 carried him through all parts of the mine, came through.
the entry, unaware of°the contempl'ated' shooting: As he proceeded
up the slab, the shot was fired, and he was slightly injured by flying
particles of coal. There is some conflict in the testimony as to
whether there was a warning call of "fire" immediately preceding
the touching off of the charge. We find it unnecessary to resolve
this conflict; inasmuch as it clearly, appears that Blocker did not
take the precaution of having the entry blocked before setting off
the charge. When the shift ended, Mashburn reported the incident
to Superintendent Pierce and L. A. Thomason, Blocker's foreman.
Pierce ordered Thomason to investigate the matter and to discharge
Blocker if he'was at, fault. After some investigation, Thomason told
Blocker, when the latter reported for work on July 28, the next
work day, that he was discharged for "shooting on" Mashburn.
When Thomason told Blocker that he was charged with having "shot
on" Mashburn, Blocker, according to his own testimony, said "0. K."
Blocker further testified that when'- he saw Pierce shortly there-
after for the purpose of having the discharge slip approved and
10 Title 26, Sections 126 and 131, Code of Alabama, 1940, which provides .
. . It shall be unlawful foi any workman to fire a blast without' first notifying all
persons in the immediate working places of that entry, and without giving sufficient
alaim so that any person or persons approaching shall be warned of danger
s s * r s v s
A . . shotfirer who is about to explode a shot shall see that all persons are
out of danger from the probable effects of such shots, and . shall take measures to
prevent anyone approaching by shouting `fire' immediately before lighting the same "
20 While it appears that Blocker's assistant actually touched off the chaige, it is clear
that Blocker, as shot fires, was in chaige of and responsible for the operation.
A "fire boss" is one who goes through the mine searching for accumulations of gas
RED DIAMOND MINING COMPANY, INC.' - 1249
collecting his wages, Pierce asked him- what the trouble was, and
that Blocker replied : "I guess I played hell, I got fired." We be-
lieve-it is clear and we find, as did the Trial Examiner, that in fail-
ing to block the entry before setting off the charge, as he was re-
quired to do, Blocker was guilty of carelessness and of violating a
safety rule vital to the welfare of other employees,,' and that as a
result thereof, Mashburn was slightly injured.
While Blocker had never before been charged with shooting coal
carelessly, it appears that the necessity for exercising care in such
operations was called to the attention of the employees generally, and
that two other employees had been discharged for similar offenses.
The record discloses a few instances of employees -being "shot on"
without those shooting the coal being discharged; however,.witli one
exception,22 there is no evidence on the circumstances surrounding
such shootings. I I
Blocker joined the Union on July 12, 1941. Immediately there-
after, he became active in organizational efforts on,'behalf of the
Union and secured union membership applications from eight of the
respondent's employees. As found above '23 on July 14, 1941, when
Blocker told Foreman Watkins that lie was planning to join the
Union, Watkins advised him that he had "better be careful" because
"there are some of them here that will do anything' to you" and that
he should "not . . . let anybody know." Also, as previously found '14
when Blocker secured the union membership application of Hammett,
his shift leader, on July 15, Hammett advised Blocker to watch his
step, because Foreman Thomason told Hammett to discharge Blocker
if he "could get something on him."
The Trial Examiner found that the penalty of outright discharge
for Blocker's careless shooting was not justified, that the respondent
used the shooting incident as a mere pretext for discharging him,
and that the operative cause for the discharge was Blocker's member-
ship and activity, in the Union. We do not agree with this conclu-
sion. We cannot say that Blocker's discharge, following a serious
infraction of a rule designed to protect life, was unreasonable, or
unwarranted. While, -as we have found above, the respondent was
unquestionably opposed to the Union, we do not believe that under
the circu+ mstances of this, case the discharge in question can be said
-to have been motivated by Blocker's union activities. We shall; ac-
cordingly, dismiss the amended complaint insofar as it alleges that
the respondents discriminated against Blocher..
22 This was the incident in 1940 when Joe Dunison was injured as a result of G L
Hammett 's shooting, where , because of the admission of Dunison , who, was Hammett's
,assistant , that he was as much at fault as Hammett, neither was disciplined
23 See Section III, A, supra. '
24 See Section III , A, supra. -
487-495-41-% of 44-79
1250 DECISIONS OF NATIONAL LABOR REI ;ATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in' Section
III, above , occurring in connection with the operations of the respond-
ents described in Section I, above, have- a close, intimate , and substan-
tial 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 the respondents have engaged in and are engag-,
ing in unfair labor practices , we shall order them to cease and desist
therefrom and to take c-ertain affirmative action" which we find neces;
sary to effectuate the policies'of the Act.
We have found that the respondents dominated and interfered with
the administration of and contributed support to the Association.
We find that the effects and consequences of such domination , interfer-
ence, and support render the Association incapable of serving ' the
respondents' employees as a genuine collective bargaining agency, and
that the recognition of the Association as the bargaining representa-
tive- of any of the respondents' employees constitutes a continuing
obstacle to the free exercise by the employees of their right to self-
organization and to bargain collectively through representatives of
their own choosing. We shall order the respondents to disestablish
ahd withdraw all recognition from the Association as the representa-
tive of any of their employees for the purpose of dealing with the
respondents concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment.
Since the contract of March 1, 1941, between the respondents and the
Association, which was in effect on the date of the second hearing
herein, embodies ' recognition of'the Association as such representative
and is a means- whereby the respondents' unfair labor practices are
perpetuated, we shall-order the respondents to cease and desist from
performing or giving effect to such contract, or any amendment, exten-
sion, or renewal thereof, or any other contract, agreement, or under-
standing with the Association relating to grievances, labor disputes,
wages , rates of pay, hours of employment , or other conditions of
employment.- Nothing in this Decision and Order, however, shall'
be deemed to require the respondents to vary or abandon those wage,
hour, and other substantive features of their relations with the em-
ployees themselves, which the respondents may have established in
performance . of' any contract, agreement, or understanding, as
amended, extended, -renewed, supplemented, or superseded.
Upon the basis of the foregoing findings of fact and upon'the entire
record in the case,"the Board makes the following:
RED DIAMOND MINING COMPANY, INC. 1251
CONCLUSIONS OF LAW
1. United Mine Workers of America, District 20, and Red Diamond
Employees Association are labor organizations, within the meaning
of Section 2 '(5) of the'Act.
2. By dominating and interfering with the administration of and
contributing support to Red - Diamond Employees Association, -the
respondents have engaged in and are, engaginb in unfair labor prac-
tices, within the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing their employees
,in the exercise of the rights ,guaranteed 'in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor prac-
tices; within the meaning of Section 8 (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. The respondents have not discriminated in regard to the hire or
tenure of employment of Roy Blocke'r,'ivithin the meaning of Section '
8,(3) of the Act. ,
ORDER 1
Upon the basis of the above findings of fact J.nd conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act;
the National Labor Relations Board hereby orders that the' respond-
ents, Red Diamond Mining Company, Inc., Charles F. DeBardeleben,
individually,'Prince DeBardeleben, individually, and Charles F. De-
Bardeleben and Prince DeBardeleben, partners doing business as Red
Diamond Mining Company, and each of them, and their officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Red
Diamond Employees Association, or with the, formation or adminis-
tration of any other labor organization of their employees, and from
contributing financial or other support to said labor organization or
any other labor organization of their employees;
(b) Recognizing or in any manner dealing with Red Diamond
Employees Association as the representative of any of their employees
for the purpose of dealing with the respondents concerning griev-
andes, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment; ,
(c) Performin-or giving effect to the contract 'of March 1, 1941,
with Red Diamond Employees Association, or to any amendment,
extension, or renewal thereof, or to any other contract, agreement, or
understanding entered into with said Association relating to griev-
1252 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
antes, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment;
(d) In any,other manner interfering with, restraining, or coercing
their employes in the exercise of. the right to self-organization, to
form, join, or assist labor organizations, to, bargain ' collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining` or other
mutual aid or protection as guaranteed in Section 7 of the Act. '
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the"Act :
(a) Withdraw all recognitio}i from Red Diamond Employees Asso-,,
ciation as the representative -of any of their employees for the pur=
pose of dealing with the respondents concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, and completely disestablish the Association as
such representative;
(b) Post immediately in conspicuous places throughout their mines
and maintain for a period of not less than sixty (60) consecutive
days from the date of posting, notices to their employees, stating (1)
that the respondents will not engage in/ the conduct from which they
are,ordered' to cease and desist 'in,paragraphs 1 (a), (b), (c), and
(d) of this Order, and (2) that the respondents will take the affirma-
tive action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the.
respondents have taken to comply herewith. -
AND IT IS FURTHER ORDERED that the amended complaint,
insofar as it alleges that the respondents discriminated in regard to
the hire and tenure of employment of Roy Blocker, be, and it hereby is,
dismissed.
J