Sewanee Coal Operators' Association, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1964

146 N.L.R.B. 1145 (N.L.R.B. 1964)

SEWANEE COAL OPERATORS' ASSOCIATION, INC. 1145
Sewanee Coal Operators' Association , Inc. and United Mine
Workers of America , Petitioner
Grundy Mining Company and Local No. 139, Southern Labor
Union , Petitioner
M. A. Payne , Inc. and Local No. 139, Southern Labor Union,
Petitioner
Stephenson Bros. Coal Co., Inc . and Local No . 139, Southern
Labor Union , Petitioner.' Cases Nos. 10-RC-5497, 10-RC-5593,
10-RC-5604, and 10-RC-5605. April 28, 1964
SUPPLEMENTAL DECISION AND ORDER
Pursuant to the Board's Decision and Direction of Election issued
on September 20, 1963,2 an election by secret ballot was conducted on
October 15, 1963, under the direction and supervision of the Regional
Director for the Tenth Region, among employees in the appropriate
unit. Upon the conclusion of the balloting, the parties were furnished
with a tally of ballots which showed that of approximately 660 eligible
voters, 579 cast ballots, of which 108 were for UMW, 50 were for SLU,
none were against the participating labor organizations, and 421 were
challenged. The challenged ballots are sufficient in number to affect
the results of the election. Thereafter, Grundy and SLU filed timely
objections to conduct affecting the results of the election. On Decem-
ber 23, 1963, Sewanee filed a petition requesting that the Board amend
its Decision of September 20, 1963, and specifically spell out the names
of the coal companies in business whose employees are entitled to vote
as members of Sewanee Coal Operators Association. UMW filed a
response thereto 3
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation, and, on December 17, 1963, issued
and served upon the parties his report on objections and challenged
ballots, in which he recommended that certain portions of the objections
be sustained and the remainder overruled, that a hearing be held before
1 The parties are hereinafter referred to as follows : Sewanee Coal Operators ' Association,
Inc., as Sewanee ; Grundy Mining Company, as Grundy ; M. A. Payne, Inc., as Payne;
Stephenson Bros. Coal Co.,. Inc., as Stephenson ; United Mine Workers of America, as
UMW ; and, Local No. 139, Southern Labor Union , as SLU.
2 Not published in NLRB volumes.
3 In its petition , Sewanee offered to show that some 1'8 coal companies are no longer in
business but remain members of Sewanee, and that only 12 among approximately 30 mem-
bers of Sewanee remain in, and intend to remain in, business . In view of our decision
herein overruling the objections , we hereby deny the request to amend the unit for pur-
poses of eligibility to vote. However , Sewanee will have opportunity, at the hearing
hereinafter ordered, to establish the operational status of any company as of the time-of
the election insofar as such status may be germane to determining the eligibility of any
challenged voter..
146 NLRB' No. 140. . `
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a Trial Examiner to resolve issues raised by the challenges, and that
the election be set aside and a new one directed, subsequent to the
hearing. Thereafter, UMW filed timely exceptions to the Regional
Director's report, and a supporting brief.
The Board has considered the Regional Director's report, the excep-
tions thereto, and the entire record in the case, and makes the following
findings :
UMIV excepted to the Regional Director's recommendations to sus-
tain the portions of the objections relating to preelection violence and
to electioneering and crowding of people at the polls.
The alleged preelection violence related to two incidents which oc-
curred in April and May 1963, more than 5 months before the election.
Each incident was the subject of separate charges, which resulted in
findings of Section 8(b) (1) (A) coercion 4 As found by the Trial
Examiner in those two cases, on April 24, 1963, UMW, Local 7244 and
its supporters engaged in mob threats and violence against employees
of Grundy to prevent them from meeting to organize and elect officers
for a Grundy local of SLU; and on May 7, 1963, UMW, Local 7083
and its supporters engaged in mob threats and violence to prevent
Grundy strike replacements from going to work at the Grundy
minesite.
These two incidents occurred in the context of an economic strike
called by UMW against Grundy commencing December 26, 1962;
UMW's petition herein, filed February 25, 1963, for a multiemployer
unit of Sewanee members' employees including Grundy's; and UMW's
charges of unlawful assistance by Grundy to an independent union,
which charges, under Board practice, blocked the processing of
UMW's representation petition. On May 20, 1963, a settlement agree-
ment with respect to UMW's charges of Section 8(a) (2) assistance
was approved by the Regional Director, and on May 23, 1963, SLU
filed its petition herein seeking a separate unit of Grundy employees.
The Board found a multiemployer unit, including Grundy's to be
appropriate, in the event a majority of employees in such unit voted
for UMW or SLU, and, as above indicated, the election was conducted
on October 15,1963.
Unlike the Regional Director, we conclude that in the circumstances
above outlined, UMW's strike misconduct, found violative of the Act,
could have no substantial impact on voter free choice in the election.
In view of the lapse of more than 5 months from the occurrence of the
strike violence in question to the holding of the election, and the ab-
sence of any showing that in this interval of time any other coercive
' United Mine Workers of America , Local No. 7083 ( Grundy Mining Company), 146
NLRB 176; and United Mine Workers of America, Local No . 7244 (Grundy Mining Com-
ipany ), 146 NLRB 244. In each case the Trial Examiner's Decision, later adopted by the
Board, had issued prior to the issuance of the Regional Director's report herein.
SEWANEE COAL OPERATORS' ASSOCIATION, INC. 1147
conduct was directed at employees in the unit, we find that the incidents
relied on in the objections were unrelated to the election and too remote
to have a probable effect upon the election.5
As to those portions of the objections relating to electioneering and
crowding at the polls, the Regional Director found that a large num-
ber of persons including strikers, nonstrikers, replacements, and others
congregated on the sidewalk and street immediately outside the polling
place before and during the polling period. The election was con-
ducted in a vacant store on the courthouse square at Jasper, Ten-
nessee,6 on a day the criminal court was in session. Four Board agents
conducting the election were assisted by two U.S. marshals. The
crowd was estimated to number from 200 to 2,000 at various times,
with a line of voters 4 to 6 deep extending from the entrance of the
polling place down the sidewalk for a block or more. While the polls
were opened, several unidentified persons circulated about the voting
line outside the polling place wearing placards reading "Vote For
United Mine Workers And Be Able To Get A Pension." The Board
agent did not specify any "no electioneering area" but did caution
representatives not to enter the polling place during the election. The
Regional Director based his finding concerning crowding upon pic-
torial evidence submitted during investigation.? However, he does
not point to any specific incidents of disorderliness or coercive con-
duct but merely couples the evidence of electioneering and crowding
immediately outside the polling place with the much earlier incidents
of 'strike violence which we have found to be too remote to have an
effect upon the election.
We conclude that, under the facts here, the presence of a crowd or
a massing of voters at the entrance to the polling place and the placard
electioneering by unidentified persons on behalf of UMW in the area
outside the polls, standing alone, did not impair the exercise of free
choice in the election. In view of the foregoing, we hereby overrule
the objections in their entirety.8
Accordingly, we shall direct that a hearing be held before a Trial
Examiner of the Board to resolve the issues raised by the 421 chal-
lenged ballots herein.
5 See, e.g., Southdown Sugars , Inc., 108 NLRB 114; Krambo Pood Stores, Inc., 101
NLRB 742, 743; The Laclede Gas Light Company, 80 NLRB 839, 841.
e Jasper was selected as the site of the election in part because It had not been the scene
of any preelection violence and adequate law enforcement ' was available . ' The site was
suggested by attorneys for Sewanee and Grundy and approved by the Regional Director.
7 In Its exceptions , UMW 'asserts that' it knows of 'only four pictures taken of the elec-
tion and attached those pictures to Its brief . The pictures 'appeared in area 'newspapers,
and the 'accompanying stories described the crowd as orderly and the election 'aswithout
disorder . In addition , UMW attached afdavi 'ts from law enforcement officers , merchants,
county officials, and other ciiizens'of Jasper who observed the election and found it proper
and orderly.
g Absent exceptions , we adopt pro forma, the Regional Director's -recommendations to
overrule certain portions of the objections , as well as his recommendations for a hearing
as to the challenges.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board ordered that a hearing be held before a Trial Examiner
on the issues raised by the 421 challenged ballots and that the Trial
Examiner serve upon the parties a report containing resolutions of
the credibility of witnesses, findings of fact, and recommendations to
the Board as to the disposition of said issues. Within 10 days from
the date of issuance of such report, any party may file with the Board
in Washington, D.C., an original and six copies of exceptions thereto.
Immediately upon the filing of such exceptions, the party filing shall
serve copy upon each of the other parties, and shall file a copy with
the Regional Director. If no exceptions are filed the Board will adopt
the recommendations of the Trial Examiner.]
[The Board further ordered that the above-entitled matter be re-
ferred to said Regional Director for the purpose of conducting a
hearing, and issuing early notice.]
United States Plywood Corporation , Petitioner and Interna-
tional Woodworkers of America , Local 3-140, AFL-CIO. Case
No. 36-RM-322. April 28, 1964
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Hearing Officer
E. G. Strumpf. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
Upon the entire record in this case,2 the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
i We find no merit in the Union 's motions that this case be dismissed or held in abeyance
because at the time of the hearing there was pending before the General Counsel its appeal
from the Regional Director 's dismissal of its charge alleging the Employer unlawfully
failed to bargain in good faith with the Union concerning certain employees involved in
this proceeding . See Loui8viile Cap Co ., 120 NLRB 769.
2 we find no merit in the Union 's contention that a new hearing is warranted because the
Employer 's witnesses used allegedly confusing and unclear terms in describing its opera-
tions. The record is adequately clear with respect to the nature of such operations despite
the varying terminology employed by the parties' witnesses.
146 NLRB No. 141.