Union Collieries Coal Co.

National Labor Relations Board - Board Decisions

Jun 15, 1942

41 N.L.R.B. 961 (N.L.R.B. 1942)

In the Matter of UNION COLLIERIES COAL COMPANY, OAKMONT, PENN-
SYLVANIA and MINE OFFICIALS' UNION OF AMERICA (IND.)
Case No. R-3464.-Decided June 15, 1942
Jurisdiction : coal mining industry.
Investigation and Certification of Representatives : existence of question: Com-
pany questioned union's majority representation in an appropriate unit;
election necessary.
Unit Appropriate for Collective Bargaining : quasi-supervisory employees, com--
prising assistant mine foreman, weigh boss, fire boss, and coal inspector, of
Company's three mines held appropriate; mine foreman and night bosses who
supervised their work excluded; Company's contention for a multiple-employer,
unit comprising these employees held not justified in view of the extent of
employee- self-organization and the absence of a showing of collective bar-
gaining history on a multiple-employer unit basis for such employees.
Definitions : supervisory'or quasi-supervisory employees in coal mines in the
capacity of assistant mine foremen, weigh boss, fire boss, and coal inspector,
held "employees" within the meaning of the Act.
Messrs. Rose and Eiehenauer, by Mr. Don Rose and' Mr. John Cor-
coran, of Pittsburgh, Pa., for the Company.
Mr. Samuel Krimslyi, of Pittsburgh, Pa., and Mr. John McAlpine,
of Bairdford, Pa., for the Union.
' , Mr. George J. Hadjino ff, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 21, 1941 , Mine Officials' Union of America , herein
called the Union, filed with the Regional Director for the Sixth Re-
gion ( Pittsburgh , Pennsylvania ) a petition alleging that a, question
affecting commerce had arisen concerning the representation of em-
ployees of Union Collieries Coal Company , Oakmont, Pennsylvania,
herein called the Company , and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat . 449, herein called the Act. On Decem-
ber 10, 1941 , the National Labor Relations Board , herein called the
Board, acting pursuant to Section 9 (c) of the Act, and Article III,
Section .3, of National Labor ' Relations Board Rules and Regula-
tions-Series 2, as amended , ordered an investigation , and authorized
41 N. L . R. B., No. 174. ,
463892-42-vol. 41-61 9G1
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the, Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On January 2, 1942, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
Union. Pursuant to notice, a hearing was held on January 12, 13,
and 14, 1942, at Pittsburgh, Pennsylvania, before W. G. Stuart Sher-
man, the Trial Examiner duly designated by the Chief Trial Exam-
iner. The Company and the Union were represented and partici-
pated- in the hearing. Full opportunity to be heard, to examine Sand-
cross-examine witnesses, and to introduce evidence bearing on the is-
sues was afforded all parties. During the hearing the Company moved
for dismissal of the petition on the following grounds : that the persons
in the various classifications of employment included in the proposed
unit are supervisory officials and not "employees" within the meaning
of the Act; that the unit proposed is not appropriate inasmuch as it
does not include similar employees of all other members of Western
Pennsylvania Coal Operators Association to which Association the
Company had delegated the power to handle its labor relations; and
that if it be determined that the persons in the claimed unit are
"employees" within the meaning of the Act, then, under various agree-
ment`s entered into by the said Association, they should be repre-
sented for the purposes of-collective bargaining by the United Mine
Workers of America and not by the Union. The Trial Examiner
reserved ruling on the motion. For reasons appearing below, the
motion is hereby denied. During the course of the hearing, the Trial
Examiner made various rulings on objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.-
Thereafter, both the Company and the Union filed briefs which
have been considered by the Board. Pursuant to notice, hearings
for the purpose of oral argument were held before the Board at
Washington, D. C., on February. 3, and March 24, 1942. The Com-
pany and the Union appeared by counsel and presented oral argument.
Oral argument was also presented in behalf of American Federation
of Labor; United Mine Workers of America and International Asso-
ciation of Machinists.
-Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE OOMPANY
Union Collieries Coal Company, Oakmont, Pennsylvania, a Penn-
sylvania corporation, is engaged in the mining, production, distribu-
tion, and sale of coal. It owns three mines located in Allegheny
UNION COLLIERIES COAL COMPANY 963
County, Pennsylvania. Raw materials used by the Company during
the year 1940, including powder, mine props, steel, oil, gasoline, wire,
and other miscellaneous commodities, were valued at approximately
$400,000. Slightly less than 50 percent of the raw materials pur-
chased during 1940 was secured from places outside the State of
Pennsylvania. During the same period the Company sold bitumi-
nous coal-valued at approximately $3,000,000.00, about 75 percent of
which was shipped to points outside the State of Pennsylvania. The
Company admits that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATION INVOLVED
Mine Officials' Union of America is an unaffiliated labor organiza-
tion, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company and the Union stipulated at the hearing that a ques-
tion concerning representation has arisen in that the Union requested
the Company to enter into collective bargaining negotiations and the
Company questioned the Union's majority representation in an appro-
priate bargaining unit.
A statement of the Regional Director introduced into evidence at
the hearing shows that the Union has substantial representation
among the employees in the unit alleged to be appropriate and that
as of the time of the hearing the Company employed 58 persons in
such unit.'
We find that a question has arisen concerning the representation of
employees of the Company. -
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I, above, has a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tends
to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE APPROPRIATE UNIT
The Union contends that all assistant foremen, night bosses, fire
bosses, weigh bosses, and coal inspectors employed by the Company in
its three mines constitute a unit appropriate for the purposes of collec-
i The Regional Director reported that the Union submitted 49 applications for mem-
bership . cards, 9 of which were dated in March and 40 were dated in April 1941; that all
signatures appear to be genuine ; and that 41 of such cards bear names - of employees on
the pay roll of the Company of December 4, 1941.
964 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
tive bargaining. The Company disputes the appropriateness of the
unit.
The Company's first objection rests upon the contention that persons
employed in the classifications specified are supervisory officials belong-'
ing to the "employer's" group and are not "employees" within the
meaning of the Act:
The nature of employment and the extent of duties and powers of
these supervisory officials as disclosed by the record may be summarized
,as follows :
Assistant mine foremen: The Mining laws of Pennsylvania provide
that when mine workings become so extensive that a mine foreman
cannot personally carry out the provisions of the law, sufficient assist-
who shall be under the supervision of a foreman, shall be em-
ployed. Assistant mine foremen must possess certificates of qualifica-
tion, which can be obtained-after an applicant has passed the examina-
tion required by law. The Mining laws further provide that the duties
of assistant mine foremen shall be to assist the mine foreman in com-
plying with the provisions of the law and that they shall be liable to
the same penalties as mine foreman for any violation thereof in por-
tions of the mine under their jurisdiction.
In his section an assistant mine foreman must see that the men per-
form their work in accordance with production plans and safety rules.
He instructs the employees in their duties, examines the section to see,
if conditions safe for work exist, directs men to their starting places,
and, at the end of the shift, makes a written report. Assistant mine
foremen do not make efficiency, ratings and have no authority to hire
or discharge. However, if a man commits a violation of the rules, the
assistant foreman may issue a violation or penalty slip and send the
offender to the mine foreman for discipline. Any grievance between
miners under his supervision, or between him and one of his men, is
settled by, the mine foreman. In all three mines assistant mine fore-
men are paid on a daily basis and receive $10.25 per day. The daily
wage of an ordinary miner varies from $6.76 to $9.00.
Night bosses:, They must possess the qualifications of an assistant
i
mine foreman and have an appropriate certificate. The night boss is
in charge of the entire mine for the shift, and has all the duties and
responsibilities of a mine foreman. He, is not required to consult the
mine foreman unless something "very unusual" occurs, such as a mine
fire. Most of night bosses have mine foremen's certificates. Assistant
foremen receive instructions from the night boss in their shift and
report to him concerning conditions in their sections. A night boss
may supervise as many as seven assistant foremen but has no authority
to hire or discharge.
Fire boss: Under the Mining laws of Pennsylvania, there must be
employed in everyigaseous mine at least one certified fire boss, whose-
UNION COLLIERIES COAL COMPANY 965
duty it is to examine the mine at least, 3 hours prior to the appointed
time for each shift to enter the mine, and once during each shift. He
examines the mine for explosive or noxious gases, as well as other
dangers, and examines the roof and sides of motor roads. At the
`end of each inspection, he makes entries in a book provided for that
purpose. He has authority to enforce compliance with the safety
rules, but has no authority to hire or discharge.
Weigh boss: His function is to weigh the coal mined by miners,
on scales located down in the mine, and to enter the number of the car
and the weight in a book or on daily sheets which he turns into the
office. A weigh boss has no one working under him, gives no orders
or instructions, and has no authority to hire or discharge.
.. Coal inspector: His duty is to visit the mine and determine by
inspection whether the men are mining and loading impurities, such
as slag, dirt, slate, and other non-combustible material, along with the
coal. It is customFtry for him to warn miners when he discovers vio-
lations, but he has no authority to hire or discharge. He may, how-
ever, refer, a miner who commits a series of violations of-the rules of
the Company to the ,mine foreman for discipline. Any experienced
miner can act as a coal inspector and no certificate of qualification is
required for the position. Coal inspectors are employed in only one
of the three mines involved in this proceeding.
In view of the nature of their duties'and the extent of their powers,
we find that assistant foremen, night bosses, fire bosses, weigh bosses,
and coal inspectors are employed in a supervisory or quasi-super-
visory capacity. , The question presented by the Company's first
objection is whether such employees are entitled to the benefits of
the Act.
It is now well settled that supervisory officials are "employees"
within the meaning of Section 2 (3) and Section 8 (3) of the Act and
that any discrimination in regard to their hire and tenure of employ-
ment because of their union activities constitutes an unfair labor prac-
tice within the meaning of the Act.2 In this connection, the Circuit
-Court of Appeals for the Eighth Circuit stated : 3
2 Supervisory employees were held to have been discriminated against on account of their
union activities within the meaning of Section 8 (3) of the Act in the following cases: a
subforeman , National Labor Relations Board v. Fruehau f Trailer Company , 301 U. S.
49 rev 'g, 85 F. (2d) 391 (C C. A 6) setting aside 1 N. L. R. B. 68; a foreman , National
Labor Relations Board v. Skinner, and Kennedy Stationery Co, 113 F. (2d) 667 (C. C.
A. 8) and Matter of American Potash Company and Chemical Corporation and Borax-Potash
'Wcrkers Union. 3 N. L. R . B. 140, enf'd 98 F (2d) 448 (C. C A 9) ; a graduate chemist
acting as director of research for a mining company, Eagle-Picker Mining and Smelting
Company v . National Labor Relations Board, 119 F. (2d) 903, 911 (C. C. A. 8) ; power-
house chief engineer, Matter of Warfleld Company and International Union of Operating
Engineers, 6 N: L. R. B. 58; newspaper district and branch managers , Matter of Star
Publishing Co. and Seattle Newspaper Guild, 4 N. L. it. B. 498 enf'd 97 F. (2d) 465
(C. C. A 9).
'National Labor Relations Board v. Skinner and Kennedy Stationery Co., 11:1 F. (2d)
667, footnote 2, supra. .
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is first argued that Eckert is not an employee within the
meaning of the Act. The contention is that being a foreman he
is an employer and not an employee. Section 2, (2) of the Act
is relied upon wherein an "employer" is defined to 'include "any
person acting in the interest of an employer." Section 2 (3) of
the Act is ignored. It provides that the term employee shall
include any employee. There is no inconsistency in these provi-
sions when facts are taken into consideration. -A foreman, in
his relation to his employer, is au employee, while in his relation
to the laborers under him he is the representative of the employer
and within the definition of Section 2 (2) of the Act. Nothing
in the Act excepts foreman from its benefits nor from protection
against discrimination nor unfair labor practices of the master.
We have frequently acknowledged the right of supervisory em-
ployees to be represented by labor organizations for the purposes of
collective bargaining with their employer .4 Beginning with Matter
,of International Mercantile Marine,' we have consistently- certified
representatives for licensed masters and mates or licensed engineers,
although they exercise supervisory authority over seamen aboard ships.
In Matter of Chrysler Corporations we found the plant protection
force, engaged in guarding company property against sabotage, theft,
trespass, fire, and accident hazards, and-enforcing safety and discipli-
nary regulations, to be an appropriate bargaining unit despite the
'Company's contention that the men involved performed confidential
and disciplinary duties and were therefore instruments of manage-
ment. In Matter of General Motors Corporation? we held that shift
operating engineers with supervisory authority and responsibility for
4 Cf. the Railway Labor Act, where the Congiess expressly declared its policy in this
regard Title I, Section 1, contains the following provision :
Fifth. The term "employee",as used herein includes every person in the service of a
carrier ( subject to its continuing authority to supervise and direct the manner of
rendition of his service ) w ho performs any work'defined as that of an employee or
subordinate official [italics supplied ] in the orders of the Interstate Commerce Com-
mission now in effect , and as the same may be amended or interpreted by orders here-
after entered by the Commission pursuant to the authority interpreting such existing
orders : Provided, however, That no occupational classification made by order of the
Interstate Commerce Commission shall be construed to define the crafts according to
which railway employees may be organized by their voluntary action, nor shall the
jurisdiction or powers of such employee organizations be regarded as in any way
limited or defined by the provisions of this Act or by the orders of the Commission.
5 Matter of International Mercantile Marine, et at. and International Union of Operating
Engineers, Local No. 3, 1 N. L. R. B. 384 ; see also Matter of Bull Steamship Co. and Balti-
more Insular Line, Inc and United States Merchant Marine Officers Association , Inc., Federal
Labor Union # 22745, A. F of L, 36 N . L. R B 99 -
" Matter of Chrysler Corporation and United Protective Workers of America, 36 N. L.
It. B. 593. See also Matter of Bendix Products Corporation and International Union, United
- Automobile Workers of America , Bendier Local No. 9, 3 N. L. It. B 682 and 15 N. I, R B.
965; Matter of Westinghouse Electric & Manufacturing Company and Local 724, United
Electrical, Radio and Machine Workers of America (0. I. 0.), 28 N. L. R. B. 799.
'Matter of General Motors Corporation and American Power Association , Independent,
36 N. L . R. B. 439.
UNION COLLIERIES COAL COMPANY 967
safe operation of the powerhouse equipment constituted an appropriate
bargaining unit, although opposed by the employer on the ground that
they were supervisory employees performing duties closely allied with
management.
While the right of supervisory employees to be represented for the
purposes of collective- bargaining cannot be doubted as a general
proposition, a further question arises as to whether the unit contended
,for is an appropriate one. The unit urged here consists only of super-
visory employees, who, with the exception of the night bosses, are
employed in supervisory positions of minor importance. None par-
ticipates in determining the policy of the Company or has power to
-hire or discharge. They have very slight disciplinary power over
employees under their supervision and in 'some cases no disciplinary
power. All are 'paid on a daily basis. Their powers, duties, and
,interests are such that all of these employees, except the night bosses,
have that community of interest which is prerequisite to inclusion
'within a single unit.
The night bosses are in a different category, however, having super-
visory authority over all employees including the other employees in
the proposed unit. In view of their duty to supervise the work of
assistant foremen; fire bosses, weigh bosses, and coal inspectors, we do
not deem appropriate the inclusion of night bosses within the unit.
The Union itself has excluded from the proposed unit the mine fore-
men whose duties are comparable to those of the night bosses. We
shall accordingly exclude the night bosses from the unit.
The Company contends, however, that if supervisory employees may
bargain through labor organizations the appropriate units should
include all similar supervisory employees employed by members of
the Western Pennsylvania Coal Operators Association, of which the
Company is a member." We have frequently held, that the employees
of several employers should be joined in a single unit when the history
of collective bargaining in a particular industry showed bargaining
on such basis to be the established method of negotiation .9 No show-
ing of such bargaining history for supervisory employees, however,
was made by the Company. On the contrary, the record shows, and
8 The Western Pennsylvania Coal Operators Association is an association of coal operators
in nine counties of Western Pennsylvania It was formed in 1933 "to secure a prompt and
equitable adjustment of questions that may arise between the members of the Association
and their employees or the representatives of such employees relating to wage agreements
and working conditions ." Since its formation, the Association has entered into a series
of collective bargaining agreements covering wages and other conditions of employment of
production employees of all the members of the Association, including the production
employees of the three mines of the Company, involved in this case . It is asserted, that
under the articles of association , signed ; by the Company, the Association is vested with
exclusive authority to enter into any and all agreements covering wages and working
conditions of employees of its members , and that an individual operator no longer has any
power in these matters,
See Fourth Annual Report , p. 93.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we find, that while collective bargaining on the multiple employer
basis became a well established and accepted method- of bargaining
in the industry for production employees,10 the few instances of col-
lective bargaining in behalf of supervisory employees, has been con-
'd'ucted on a single-employer unit basis.',' Nor has the Union organ-
ized the supervisory employees of all members of the Western Penn-
sylvania Coal Operators Association.
Under all circumstances, including the extent of employee
,self-organization among supervisory employees of members of the
Association, we conclude that a bargaining unit limited to certain
supervisory employees of the Company, is appropriate.
The Company also contends that if the supervisory employees con-
cerned are "employees" within the meaning of the Act, by virtue of
the Appalachian Agreement and its supplements these supervisory
,employees should be represented by the United Mine Workers, party to
the Appalachian Agreement. Although notified of the proceedings in
this case, the United Mine Workers did not appear at the hearing
before the Trial Examiner. The United Mine Workers, so "far as the
record shows, has never bargained for supervisory employees and the
'employees here involved are specifically excluded from the Appala-
chian Agreement and its supplements .12 Accordingly, we find- the
Company's contention to be without merit.
We find that the assistant foremen, fire bosses, weigh bosses, and
coal inspectors, employed in the three mines of the Company, exclud-
ing foremen and night bosses, constitute a unit appropriate for the
'purposes of collective bargaining and that said unit will insure to
employees of the Company the full benefit of their right to self -organi-
zation and to collective bargaining and otherwise will effectuate the
policies of the Act.
VI. THE DETERMINATION ' OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
10 The Appalachian Agreement of June 19, 1941 , to which western Pennsylvania Coal
Operators Association was party , is limited in its operation to production employees ( miners)
In the mines and exempts from its operation supervisory employees . Section 27 of that
Agreement provides that "the term 'miner worker ' as used in this Agreement shall not
include mine foremen, assistant mine foremen , fire bosses , or bosses in charge of any
claims of labor inside or outside of the mine , or coal inspectors or weigh bosses The.11
'same provision was also inserted into the Supplementary Agreement of July 16 , 1941 , between
Districts 3, 4, and 5 of the U. M. W. A. and the Association.
n In March 1941 the Union negotiated an agreement with Ford Collieries , a member of
the Association , covering wages and other conditions of employment of supervisory employees
of that , Company. It also negotiated an oral agreement covering supervisory employees with
Hillman Coal Company, Allegheny County, Pennsylvania , and has obtained a substantial
increase in wages for the supervisory employees of BRP Coal Company.
12 See footnote 10, supra.
UNION COLLIEIUES COAL COMPANY 969
roll period 'immediately preceding the date of Direction of Election
herein, subject to the limitations and additions set forth- in the
Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Union Collieries Coal Company, Oakmont,
Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the Act.
2. The assistant foremen, fire bosses, weigh bosses, and coal inspec-
tors employed in the three mines of the Company, excluding mine
foremen and night bosses, constitute a unit appropriate for the pur-
poses of collective bargaining, within the meaning, of Section 9 (b)
of the Act..
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
.with Union Collieries Coal Company, Oakmont, Pennsylvania, an
election by secret ballot shall be conducted as early as possible, but
not later than thirty. (30) days from the date of this Direction of
Election, under the-direction and supervision of the Regional Director
for the Sixth Region, acting in this matter as agent for the National
Labor Relations Board and subject to Article III, Section 9, of said
Rules and Regulations, among the assistant foremen, fire bosses, weigh
bosses, and coal inspectors employed at the' three mines of the Union
Collieries Coal Company, 'Oakmont,, Pennsylvania, and were employed'
during the pay-roll period immediately preceding the date of this Di=
rection, including employees who did not work during said pay-roll
period because they were ill or on vacation or in the active military
service or training of the United States, or temporarily laid off, but
excluding foremen and night bosses, and employees who have since
quit or been discharged for cause, to determine whether or not they
desire to be represented by Mine Officials' Union of America (Ind.)
for the purposes of collective bargaining.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. GERARn D. REiLLY, dissenting :
The major issue raised by this case presents the Board with diffi-
culties which I do not feel were present in the cases -upon which the
majority relies. It is true that, technically speaking, a supervisory
official in a factory or mine is an employee of the corporation, since
he works for hire, although he may also, within the broad definition
of Section 2 (2) of the Act, be an "employer" in his relationship to
subordinate employees. It is also true, as was pointed out in the
Circuit Court of Appeals decision cited by the majority '13 that such
persons act in a dual capacity, and "there is no inconsistency in these
provisions when the facts are taken into consideration." Nevertheless,
despite the broad definition of the term "employee" in the Act, there
must be an implied limitation in its scope, for the statute must be
construed against the background of an industrial society in which the
great majority of business enterprises are conducted in the corporate
form . A literal interpretation of the statute would mean that even
the president, vice president, and treasurer of a corporation have a
right to bargain collectively, since they are also employees. Yet very
few persons would contend for such an absurd construction, and it is
unlikely that the courts would be hospitable to such an argument 14
In ordinary representation cases where supervisory employees have
been involved, the Board, recognizing the importance of preserving the
dividing line at the conference table, has tended to exclude foremen
and other supervisory employees from a production and maintenance
unit. With respect to the maritime industry in which, as in the instant
case, petitioners have sought to represent a group of employees all of
whom were supervisory, the Board has attempted to solve the, dilemma
by establishing separate units composed of masters, mates, and pilots.15
The majority opinion treats this case as if it were controlled by
the merchant marine cases in which separate bargaining units had been
established for licensed officers.16 Nevertheless, I believe there is a
gendine distinction between this case and the maritime cases. Judicial
notice may be taken of the fact that labor relations in the bituminous
coal industry have for many years been regulated by collective agree-
la See footnote 3 of the majority opinion.
"Church of the Holy Trinity v. United States , 143 U. S. 457
11 For a recent decision holding that the Board has no authority to lump unlicensed seamen
in the same unit with masters and mates see N. L R B v. Delaware-New Jersey Ferry Co,
decided April 29, 1942, (C. C. A. 3), enf'g as mod. Matter of\Delaware-Ncw Jersey Ferry Com-
pany and United Marine Division , Local No 333, affiliated with the A F L and the I L A,
30 N L. R. B 820.
10 Those decisions do answer one contention made by counsel for the Company, viz, that
the employees included in the proposed unit are not employees within the meaning of the Act,
since.under the mining laws of the State of Pennsylvania some of them have certain statu-
tory duties to perform , irrespective of the instructions or the desires of the mining com-
panies. This argument seems to overlook the existence of similar authority vested in
masters and pilots of ships under the safety -at-sea statutes and the general admiralty law.
UNION COLLIE'RPES COAL COMPANY 971
ments negotiated between associations of mine operators and the
United Mine Workers of America. , These agreements cover all miners,
irrespective of craft nomenclature, except those holding supervisory
positions. In other words, the situation is entirely different from that
which exists in the maritime industry where unionization of the li-
censed deck personnel has developed quite apart from the development
of collective bargaining for the forecastle or the engine room.
This case does not turn on a question of law, but upon a 'finding
of a "unit appropriate for collective bargaining" within the meaning
of Section 9 (b). - Consequently, in our appraisal of factors entering
into the conception of the word "appropriate," it is important to con-
sider the possible impact of this decision upon the general policy of
the Act.
At the invitation of the Board, a representative of the United Mine
Workers appeared at the oral argument. He pointed out that the
employees who are the subject of this petition were excluded from the
scope of the agreement discussed at the last Appalachian conference
of operators and miners because of a general understanding that they
were management representatives. He stated, however, that if the
Board should 'decide that the supervisory employees who are the
subject of this petition constituted a, unit appropriate for collective
bargaining, the Mine Workers' union would in all probability seek
to represent such persons when conferences were initiated for the
purpose of negotiating new agreements. Assuming that this predic-
tion is correct, this would mean that the Board would be faced with
a situation in some mines in which the union which already repre-
sents the production and maintenance employees would also be
representing supervisory officials. While it, may be argued that any
conflict of interest can be met by establishing separate bargaining
units, such a separation is more theoretical than real where both units
have the same representative.
Of more serious concern, however, is the prospect of organizational
rivalry among the production workers involving supervisory officials,
especially those situations in which there will be competing unions
in the same mine. Under such circumstances, it is a well-established
doctrine 'of this Board that the employer must remain neutral, for
to engage in acts of assistance to one union as against another, is
an unfair labor practice. A corollary of this principle is that super-
visory employees must also maintain a laissez-faire attitude as their
actions are imputed to the employer. Yet if such supervisors under
the mechanisms of this Act are permitted to promote and encourage'
the interests of the union which is their representative, it would appear
that their conduct might well have a coercive effect impairing the
freedom of choice among their subordinates which the Act guarantees.
r
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It would hardly be consistent, however, to apply the usual standards
to this situation in view of the assumptions which underlie the
granting of the petition in this case.
While it may be conceded that the position of the employees who
are the subject of this petition would be benefited by effectuating their
right to collective bargaining - under the provisions of the Act, it
seems to me that this is outweighed by its possible impingement upon
the similar right of the greater number. Weighing all these- consid-
erations, I am therefore of the opinion that the unit proposed here is
inappropriate and that the petition should be dismissed.