Weirton Coal Co.

National Labor Relations Board - Board Decisions

Aug 26, 1941

34 N.L.R.B. 1255 (N.L.R.B. 1941)

In the Matter Of WEIRTON COAL COMPANY and UNITED MINE
WORKERS OF AMERICA, LOCAL 6295
Case No. C-1767.-Decided August 26, 1911
Jurisdiction : coal mining industry.
Unfair Labor Practices:
Interference, restraint and coercion: charges of, dismissed.
Discrimination : charges of , dismissed.
Practice and Procedure : complaint dismissed.
Mr. Henry Shore and Mr. Robert H. Kleeb, for the Board.
Thorp, Bostwick, Reed, & Armstrong, by Mr. Clyde A. Arm-
strong, Mr. Donald W. Ebbert, and Mr. Robert M. Ingram, of Pitts-
burgh, Pa., for the respondent.
Mr. Anthony Cavalcante, of Uniontown, Pa., for the Union.
Mr. Daniel J. Harrington, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Mine
Workers of America, District No. 4, herein called District No. 4, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Sixth Region (Pittsburgh, Pennsylvania)
issued its complaint, dated June 4, 1940, against Weirton Coal Com-
pany, Isabella, Pennsylvania, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint,
accompanied by notice of hearing thereon, were duly served upon
the respondent and upon District No. 4.
As to the unfair labor practices, the complaint alleged, in substance,
that the respondent at its Isabella, Pennsylvania, mine: (1) inter-
fered with, restrained, and coerced its employees in the exercise of
their rights to self-organization by statements, threats, labor espion-
34 N. L. R. B., No. 121.
1255
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
age, discrimination, attempts to interfere with the selection of the
mine committee of the United Mine Workers of America, Local 6295,
herein called the Union, and other acts; and (2) discharged three
groups of named employees' on or about,specified dates and at all
times since, has failed and refused to reinstate them, and closed and
discontinued operations at its Isabella mine from on or about May 31,
1938, to on or about September 15, 1938, to discourage union member-
ship, activity on behalf of the Union, and concerted activity, thereby
discriminating in regard to hire, tenure, and conditions of
employment.
On June 14, 1940, the respondent filed its answer, admitting some
allegations of the complaint, but denying that its business affected
commerce or that it had engaged in the alleged unfair labor practices.
Pursuant to notice a hearing was held from June 17 to July 24,
1940, at Uniontown, Pennsylvania, before Henry J. Kent, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel and participated in
the hearing. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues. At the close of the Board's case the respondent
moved to dismiss the complaint for lack of jurisdiction and also on
the ground that the evidence failed to show any violation of the Act
by the respondent. The Trial Examiner granted the motion as to
John Guy, one of the persons alleged in the complaint to have been
discriminated against, but denied the motions in all other respects
without prejudice and subject to renewal at the close of the hearing.
At the close of the hearing the respondent renewed these motions.
The Trial Examiner reserved ruling on them and in his Intermediate
Report, mentioned below, denied them in so far as they were incon-
sistent with the findings and recommendations made in said report.
At the close of the hearing counsel for the Board moved to conform
the complaint to the proof and the respondent moved to conform the
answer to the proof. The Trial Examiner granted both motions.
During the hearing the Trial Examiner made numerous rulings on
other motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors Were committed. The rulings are hereby
affirmed.
On December 13, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly ' served upon the respondent and
' First group : Nick Cavalier , Louis Congello , Clifford Marks, John Ountrakis and Leo
Reckner on April 4, 1938 ; second group : Peter Berish , Roy Dugan, and James Mauritz,
who were the three members of the Union' s mine committee , on May 26, 1938; third group :
John Guy and the 19 employees listed in Appendix A, attached hereto and made a part
hereof, on June 23, 1938.
WEIRTON COAL COMPANY 1257
District No. 4, wherein he found that the respondent had discriminated
in regard to the hire and tenure of employment of three of the em-
ployees named in the complaint and recommended that the respondent
cease and desist therefrom and take certain affirmative action to remedy
the situation. He further recommended that the complaint be dis-
missed in so far as it alleged that the respondent discriminated in re-
gard to the hire and tenure of employment of the remaining employees
named therein. Exceptions to the Intermediate Report and to the
record were filed by the respondent and exceptions by the Union on
January 21, 1941.
Pursuant to request therefor by and notice thereof to both parties,
a hearing was held before the Board on June 12, 1941, in Washington,
D. C., for the purpose of oral argument. The respondent appeared
and presented oral argument. The Board has considered the excep-
tions to the Intermediate Report and to the record and, save as they
are consistent with the findings, conclusions, and order set forth below,
finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Weirton Coal Company is a Pennsylvania corporation having been
originally incorporated in the year 1920 as the Redstone Coal and Coke
Company which subsequently changed its name in August 1929, to the
Weirton Coal Company. Its principal office is in Pittsburgh, Pennsyl-
vania. It is a wholly owned subsidiary of the National Steel Corpora-
tion of Pittsburgh, Pennsylvania, and said National Steel Corpora-
tion is also the parent company of the Weirton Steel Company, which
is engaged in the manufacture, production, and sale of a diversified
line of iron and steel products. The respondent owns and/or leases
a number of coal properties in Pennsylvania, but the sole coal prop-
erty which it was operating at the time of the hearing was the one
involved in these proceedings, known as the Isabella mine located at
Isabella, Luzerne Township, Fayette County, Pennsylvania.
The principal supplies and equipment used at the Isabella mine con-
sist of rails, ties, timbers, track fastenings, electric motors, steel cable,
electric cable and wire, structural steel, bolts, nuts, rivets, conveyor
belts, miscellaneous electrical equipment, and mining supplies. In
each of the years, 1938 and 1939, more than $400,000 worth of sup-
plies and equipment were purchased by the respondent for use at the
Isabella mine, 35 percent of which represented supplies and equip-
ment purchased outside the Commonwealth of Pennsylvania and
shipped from States of the United States other than Pennsylvania to
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its Isabella mine. In the year 1939 the respondent produced at the
Isabella mine more than 600,000 tons of coal , and in 1939 more than
800,000 tons of coal, almost 100 per cent of which were shipped to the
Weirton Steel Company plant at Weirton, West Virginia, where it was
consumed by the latter company in connection with the operation of
the steel plant. At the time of the hearing, there were approximately
550 employees at the Isabella mine.
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, Local 6295 , is a labor organiza-
tion admitting to membership employees at the Isabella mine. The
Union is under the jurisdiction of District No. 4 of the United Mine
Workers of America, which is a subdivision of the United Mine
Workers of America , herein called the U. M. W. A., an international
labor organization , affiliated with the Congress of Industrial Or-
ganizations.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background of labor organization and labor relations
(1) Labor relations from 1933 to September 1937; the general
agreement
The Union was chartered by the U. M. W. A. on July 27, 1933.
Many of its original members had been members of a predecessor
labor organization, the Isabella Local Union, which was organized
about May 26, 1933. The record is silent concerning any prior his-
tory of labor organization at the Isabella mine. During 1933 when
the U. M. W. A. was organizing the Pennsylvania coal field of which
the Isabella mine is a part, a general strike occurred which led to
conferences with Federal officials associated with the National Re-
covery Administration. A general agreement was reached whereby
the strike was called off and an election of bargaining representatives
was to be held. Pursuant to this agreement an election was held at
the Isabella mine on November 22 or 23, 1933 . Five hundred ninety-
three employees, a substantial majority, voted for specified U. M.
W. A. officials as their bargaining representatives, and 20 employees
voted for the Miners Independent Brotherhood, a labor organization
which makes no other appearance in this case.
Officials of the U. M. W. A., as bargaining representatives chosen
by a majority of the Isabella mine employees , negotiated a contract
with representatives of the respondent , effective from April 1934
until March 31, 1935. The terms of this contract are not in evidence
and there is no evidence concerning the causes of a mine stoppage,
WEIRTON COAL COMEANY 1259
often referred to at the hearing as a strike, which lasted from May
26, 1934, until November 1935.
An agreement, hereinafter referred to as the general agreement,
was entered into between the respondent and the U. M. W. A. and
District No. 4 on October 30, 1935, the effective term of which was
to be October 1, 1935, to March 31, 1937. Sometime in early 1937,
the Union's mine committee, upon instructions from district repre-
sentatives of the U. M. W. A. met with Thomas Park, then super-
intendent of the Isabella mine, and secured his assurance that the
respondent would continue to observe the general agreement after
its expiration date, subject to automatic modification with respect
to wages and hours following the terms of the Appalachian agree-
ment. The Appalachian agreement is the agreement negotiated
from time to time between the commercial mines represented by the
Coal Operators Association and the international officers of the U. M.
W. A. In April 1937, representatives of District No. 4 met with
representatives of the respondent and it was agreed that the respond-
ent continue to work the Isabella mine under the provisions of the
general agreement, subject to modification in so far as any changes in
hours of employment or wage scales might be agreed upon in sub-
sequent negotiations between the international officers of the U. M.
W. A. and the Association of Commercial Mine Operators in the
area under the Appalachian agreement.
The general agreement provides for a union dues check-off whereby
the respondent transmits dues to the secretary-treasurer of District
No. 4 upon the individual written assignments of the employees.
This system was in effect at all times material to the issues herein
and at all times a high percentage of the employees made written
assignments whereby their dues were checked off their wages by
the respondent.
(2) The Union and the functions of the mine committee
Roy Dugan, an employee, was a trustee of the Union in 1935 and
was appointed vice chairman of the Union in November 1935. He
succeeded the president of the Union in February 1936 when the then
president resigned. At the annual union elections in June 1936 and
1937, Dugan was elected and reelected president of the Union. In
June 1936, Dugan was also elected to be one of three members of
the mine committee along with James Mauritz and Joseph Binion.
In June 1937, Dugan and Mauritz were reelected and Peter Berish
was elected to constitute the third member of the mine committee.
No election was held in June 1938 because of a labor dispute and
mine stoppage occurring in late May 1938, mentioned below. The
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three members of the mine committee were discharged, as described
below, on May 26, 1938. Under the general agreement a committee-
man "shall be eligible to serve as a committee member only so long
as he continues to be an employee." However, the Union held no
election in June 1938 because of the labor dispute and mine stoppage
arising at the time of the discharge of the mine committee, as de-
scribed below, and the mine committee continued as leaders in ac-
tivities of the Union after their discharge and during the mine
stoppage occurring from late May until September 15, 1938. On
September 6, 1939, the respondent was notified that the Union had
chosen a new committee.
The general agreement provides that "The duties of the Mine
Committee shall be confined to the adjustment of disputes arising
out of this agreement that the Mine Management and employe, or
employes, have failed to adjust." But the general agreement itself
enlarges these declared duties by providing, as set forth hereinafter
in full, that the respondent may require the wearing of goggles in
cases 'additional to those specified in the general agreement when
"mutually agreed upon by the Mine Management and the Mine Com-
mittee." When the respondent planned to institute new safety rules
covering many subjects, it claimed, as hereinafter discussed, that
it called in the mine committee to secure its approval. In practice
the members of the mine committee as individuals, if not as a mine
committee, undertook important functions not specified in the general
agreement with the approval or acquiescence of the employees. The
respondent did not object to this practice. As hereinbefore set forth,
the mine committee, upon request of officials of District No. 4, met
with Superintendent Park in early 1937 and secured an extension
,of the general agreement beyond its expiration date. The broad
functions performed by members of the mine committee were a
logical development, since Dugan, as president of the Union, ordi-
narily presided at the union meetings and was a member of the
mine committee as well, and since the U. M. W. A. officials signatory
to the general agreement were not employees and did not live in the
immediate neighborhood of the Isabella mine.
(3) General mechanization of the mine; two disputes over
rehiring policy
Beginning in May 1937, the respondent began a general program
of mechanization of the Isabella mine by, laying foundations' for
the building of a new washery outside the mine. The general change-
over to mechanization required shutting down the mine from Septem-
ber 11 to October 25, 1937. Before mechanization, electric motors
WEIRTON COAL COMPANY 1261
were used only on the main-line hauls, whereas after mechanization
electric motors were used also back in the sections of the mine to
pull coal cars and for other transportation which formerly had been
performed by horses. Two coal tipples were discontinued as well
as coal hoisting through a mine shaft, and a belt was used for bring-
ing coal from the bottom of the mine to the surface. An aerial
tram for dumping slate, a waste material, was put in operation about
February 1938 and displaced dump cars running on ground tracks.
But most revolutionary from the point of view of displacement of
employees was the change from hand-loading to machine-loading.
Prior to September 1937, the respondent employed about 530 em-
ployees as hand-loaders of a total of 750 mine employees, whereas
after mechanization, the operation of hand-loading was abolished.
Mechanization inevitably caused difficult employment problems and
on the whole required the exercise of greater skill by the employees.
After the mechanization program, the mine committee gave con-
siderable attention to the unemployment of some 200 employees who
were not rehired, particularly those former employees who lived in
respondent-owned houses in the town of Isabella. Superintendent
Park testified that there was a 1-day strike on October 25, 1937, the
day the mine reopened, because the Union protested that the 're-
spondent had not hired as many men living in the town of Isabella
as it should have. There is no further evidence respecting cessation
of work at that time. However, Roy Dugan testified that around
September 28, 1937, the Union made an agreement with the respond-
ent that the respondent take back all the old employees when needed
"and only in such cases where they [the respondent] needed me-
chanics or something of that kind where our men did not or could
not do the work would they take the others, and that they would
give the housemen the preference." "Housemen" refers to employees
living in company-owned houses in the town of Isabella. But Samuel
Cassidy, the respondent's general manager, testified that when the
mine committee requested that old employees living at Isabella be
reemployed before new men were taken on, he told them "that we [the
respondent] would give preference to those men as much as we
could that we told them at that time that we could not guarantee
rehiring all . . ." The general agreement contains no provisions ap-
plicable to rehiring after mechanization. The Trial Examiner found
and we find that there was an oral understanding between the parties
just after mechanization to the effect that preference would be given
old employees only where their fitness for an available job was equal
to the fitness of other candidates for employment.
In January 1938 the respondent hired five new employees, one as a
motorman, one as a whaley-machine helper, and three as shot-firers,
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Park testified that those were jobs which could not be performed by
old employees living at Isabella, but admitted that he made no spe-
cific inquiry to determine whether there were any shot-firers among
the old employees. The mine committee complained to the respond-
ent about the hiring of these five men and represented that the
respondent should have employed old employees from the town of
Isabella. This disagreement led to a 3-day strike in January 1938,
about the calling of which there are no particulars in the record.
However, Samuel Cassidy, who has been the respondent's general
manager since January 1937, testified that when William Hynes,
president of District No. 4, proposed to negotiate the dispute with
him, Cassidy called Hynes' attention to the following provision of
the general agreement :
ILLEGAL SUSPENSION OF WORK
53. A strike or stoppage of work on the part of the employees
shall be a violation of this agreement. Under no circumstances
shall the Operator discuss the matter under dispute with the
Mine Committee or any representative of the employees during
suspension of work in violation of this agreement.
According to the uncontradicted testimony of Cassidy, Hynes then
left but returned in 2 or 3 hours and told Cassidy that at a meeting
of the Union the men had voted to go back to work and that he
told the employees that they were not acting properly under the
general agreement. We find, as did the Trial Examiner, that this
testimony is substantially correct, and that the 3-day strike of Janu-
ary 1938 was a strike and stoppage of work in violation of para-
graph 53 of the general agreement.
Following the termination of the January strike, there were con-
ferences concerning the hiring of the new employees between Cas-
sidy, Park, Hynes, Komlo, a,representative of District No. 4, and the
members of the mine committee. The respondent retained the five
new employees.
B. The relation of the alleged unfair labor practices to the general
agreement
(1) The general agreement and the dinner-hour and overtime
questions
Fundamental and sharply contested issues of interference with the
operation of the mine by the mine committee and departure from the
general agreement by the respondent arose at the hearing which are
closely connected to certain provisions of the general agreement.
WEIRTON COAL COMPANY 1263
Under "MAXIMUM HOURS AND WORKING TIME," the geii-
eral agreement, in part, provides :
1. Seven hours of labor shall constitute a days' work. The
seven hour day means seven hours' work at the mines, at the
usual working places for all classes of labor, exclusive of the
lunch period, ... except in cases of accident which temporarily
necessitate longer hours for those employees required on account
thereof; and also excepting that number of employees in the
mine whose daily work includes the handling of man-trips and
those who are required to remain on duty while men are entering
and leaving the mine.
2. The hours of labor for the day shift in the mines to be
from 7: 00 o'clock A. Al. until 11: 00 A. M., with one-half hour
for dinner, and from 11: 30 o'clock A. M. to 2: 30 o'clock P. M.
The hours of commencing work for the night shift will be at
the option of the Operator.'
4. The following classes of employees are excepted from the
foregoing provisions as to the maximum hours of work :
All employees engaged in the transportation of men and coal
shall work the additional time necessary to handle man-trips
and all the coal in transit, and shall be paid the regular hourly
rate ...3 This rule shall not encourage the working of over-
time except where it is absolutely necessary to take care of the
conditions named.
When on at least two occasions the mine committee complained
to the respondent that the respondent was working the flatroad
motormen through the dinner hour, the respondent, according to
Cassidy and Park informed the mine committee that no complaint
had been brought to the mine foreman by the men on the job in
question and therefore the respondent refused to discuss the matter
until the matter was brought up in proper form by i. complaint
initiated by an aggrieved employee. The provisions of the general
agreement upon which Cassidy and Park were basing their refusal
to discuss this question come under the heading "(SETTLEMENT
OF DISPUTES)":
46. Should differences arise between the employee and the Oper-
ator as to the meaning and application of the provisions of this
2 At most, if not all, of the time applicable to the question raised herein , the respondent
was operating its employment force inside the mine for three shifts . The day shift or
first shift proceeded according to the hours provided in the general agreement. The second
shift began at 3 p. in. and ran to 10: 30 p in., with half hour out for dinner at 7 p in
The third shift began at 11 p in. and ran to 6: 30 a. in
s Exception for outside employees which is not material to the issues herein.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement, or should differences arise about matters not specifi-
cally mentioned in this agreement, or should any local trouble
of any kind arise ,at the mine, there shall be no suspension work
on account of such differences, but an earnest effort shall be
made to settle such differences immediately.
47. First, between the aggrieved party and the Mine Foreman.
48. Second, through the Superintendent of the mine and the
Mine Committee.
49. Third, through the general management and the representa-
tives signatory to this agreement, or their representatives.
50. Fourth, by a Board consisting of four members, two of
whom shall be designated ay the representatives signatory
hereto, and two by, the Operas or. Failing to agree they
may select an umpire to decide the dispute. Should the Board
be unable to agree on the selection of an umpire, he shall be
designated by the representatives signatory hereto and by the
Vice President of WEIRTON COAL COMPANY, and the
decision of the umpire in any event shall be final. Expense
and salary incident to the service of an umpire shall be paid
jointly by representatives signatory hereto and WEIRTON
COAL COMPANY.
51. Pending the hearing of disputes, the employes shall, not
cease work because of any dispute; and a decision reached at any
stage of the proceedings shall be binding on both parties thereto;
and-shall not be subject to reopening by any other party except
by mutual agreement.
Park and Cassidy further stated that according to their under-
standing the mine committee could not discuss with the respondent
what the mine committee declared to be a breach of contract.
When Cassidy was asked what provision of the general agree-
ment gave the respondent the right to work men through the lunch
hour, he replied, "The management has all rights not specifically
limited in this contract" but on further questioning relied upon a
part of paragraph 4 which declares "All employees engaged in the
transportation of men and coal shall work the additional time neces-,
sary to handle man-trips and all the coal in transit ..." [Italics
supplied.]
Over a period of years the respondent had worked the motormen
and snappers on the first and second shift, the only shifts hauling
coal through the dinner hour, except for a period of ten days or
two weeks after the general mechanization when the motormen and
snappers had taken their dinner hour. Park testified that the motor-
men and snappers had never objected to the practice. Three of
the four transportation employees who had been working regularly
WEIRTON COAL COMPANY 1265 ,
through the dinner hour, testified that they had never complained
about the matter and that they preferred to work through the dinner
hour since they had an opportunity to eat their dinner at other
times, and then left work a half hour earlier. Duda, the fourth
employee regularly affected by the practice, testified that he pre-
ferred to take the regular dinner hour, but had never complained
about working through the dinner hour. All four of these employees
were members of the Union. All the members of the mine com-
mittee testified that the question had been a long standing grievance
and that as a result of their efforts the men had been permitted
to take their dinner hour at various times, for extended intervals.
The Trial Examiner credited the testimony of Park and the trans-
portation employees and we find such testimony to be true.
Under the circumstances, the refusal of the respondent to discuss
the dinner-hour question with the members of the mine committee
was not unreasonable. No complaint had ever been made by any
of the employees affected by the practice and there is no showing
that the Union considered it to be a breach of the general agreement
or had complained about it to the respondent.
(2) The general agreement, the new safety rules, and the goggle
question
One of the reasons given by the Union for the dispute which
resulted in the stoppage of the mine in late May 1938, was based on
the contention that the respondent had failed to secure the consent
of the mine committee to the adoption of the safety rule requiring
the wearing of goggles by employees riding on the man-trips. Under
"SAFETY PRACTICES" the general agreement provides :
66. Reasonable rules and regulations of the Operator for the
protection of the persons of the employes and the preservation
of property shall be complied with.
67. It shall be optional with the Operator to require certain
or all employes to provide themselves with and to use safety
hats and/or safety shoes and/or safety goggles of an approved
type. The men shall be required to wear goggles when using
a pick, when breaking rock or slate, when chopping timber
and in such other cases as may, be mutually agreed upon by the
Mine Management and the Mine Committee ... Any employe
failing to comply with any safety rule or regulation of the
Operator as above provided shall be subject to discipline.
[Italics supplied.]
These provisions on safety rules were incorporated into the general
agreement when it first went into effect in 1935. In 1937, when the
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent undertook the general mechanization of the mine, George
McClellan was employed as safety engineer with instructions, accord-
ing to General Manager Cassidy, to make a safety investigation of
the mine and "to formulate [safety] rules and to take these rules up
with the foreman and management and the men so that they would
become accustomed to them and would understand them and in that
way we would have less accidents." Before formulating any safety
rules, McClellan had a conference with at least two members of the
mine committee, one of whom was Roy Dugan, and informed them that
he was planning to formulate beneficial safety rules as he had done
at another mine with the cooperation of the U. M. W. A. The members
present assured McClellan of their fullest cooperation and Roy Dugan
told McClellan that he had no objection to safety rules which did not
impose hardships on the men. Subsequently, new safety rules were
drafted by McClellan, approved by the management, and printed for
four classes of employees, drilling-machine crews, shot firers, motor-
men and snappers, and cutters and scrapers. Each of these sets of
rules contains particular rules for the class of employee affected and
all four sets contain identical "GENERAL RULES" which "apply to
all employees and are not covered in the rules for ' individual jobs."
Rule 46 (j) of the general rules provides that "Goggles must be used
by all employees while riding the man trips." McClellan called in the
classes of employees for whom specific rules were devised in separate
groups and secured their approval to these rules. Thereafter, in
December 1937, these safety rules were put into effect.
When McClellan called in the motormen and snappers to discuss the
final rules with them, Roy Dugan, who was a motorman, was present
and at the time made no objection to the rules. Although Berish, a
member of the mine committee, could not recall being present at any
meeting when McClellan discussed the safety rules with any group of
employees, he had received a copy and discussed the final rules with
the other members of the mine committee and he testified that the mine
committee had not protested against any of the rules to the respondent
before the dispute leading to the mine stoppage in late May 1938, here-
inafter discussed. When McClellan was asked at the hearing if he had
ever had a meeting with the mine committee in which the mine com-
mittee expressed agreement with the rules, he answered : "Not with the
mine committee as a whole, no, sir."
It is clear that the safety rules, which bear the words "approved on
October 18, 1937," were approved by the respondent and then taken up
with the respective classes of employees without submission to the mine
committee in a sufficiently definite form so that the mine committee
could approve, reject, or discuss them in any concrete way. This fail-
ure to call in the mine committee as a mine committee after the safety
rule requiring wearing of goggles on the man trip was formulated,
WEIRTON COAL COMPANY 1267
did not meet the requirement of the general agreement that the re-
spondent could require wearing goggles at times other than those
specified in the general agreement by securing the mutual consent of
the mine committee. However, as hereinafter discussed, this failure
by the respondent _did not justify the Union in taking steps which
might lead to stoppage of the mine without following through the
provisions of the general agreement concerning the settlement of
disputes.
C. The alleged discrimination against give employees on the outside
labor gang
In April 1938, Cavalier, Congelio, Marks, Ountrakis, and Reckner
were working on the outside labor gang. It appears in the record
that during the latter part of the summer and the early fall of 1937,
respondent changed over its mining operations from the former prac-
tice of hand loading to machine loading. As a result of these changes
much of the work heretofore done by the outside labor gang was dis-
continued. During the hand-loading operations, waste materials, such
as slate, had to be hauled over tracks to a dump and a considerable por-
tion of the other work performed by the outside labor gang consisted
of maintaining, extending, and repairing these outside tracks. Most
of this work has been discontinued by reason of the erection and opera-
tion of an aerial tram, which carries off the slate and other waste
materials and automatically dumps such matter on the waste dump.
After the mechanization of the mine was completed, the respondent
tore up much of the outside track work and the old tipples heretofore
used in its operations. On or about April 1, 1938, Williams Heller,
the master mechanic in charge of all outside work, notified Park that
the outside work was nearly completed and that he was going to lay
off most of the labor gang. Heller, on April 4, laid off eight men of a
total of fourteen on this gang, five of the eight being Cavalier, Congelio,
Marks, Ountrakis, and Reckner. The remaining six were transferred
to the so-called supply gang, which unloaded and loaded supplies and
machinery from railroad cars or trucks outside the mine onto cars for
transportation into the mine to points where such materials were
needed. Heller and Cassidy testified that the work done by the supply
gang required strong and active men, as they had to handle heavy ma-
chinery and new type heavy steel rails required for use on inside tracks,
with the adoption of larger and heavier electric motors and cars after
the change over to mechanization. In selecting the men to be laid off,
these factors as well as the relative efficiency of the various employees
were taken into consideration. Prior to the discharges, these men were
not outstanding for any union activities and the record also fails to
show that the others who were transferred to the supply gang were
non-union employees. The Trial Examiner found, and we find, that
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discharges of Cavalier, Congelio, Marks, Ountrakis, and Reckner
were not unfair labor practices. The allegations of the complaint with
respect to them will accordingly be dismissed.
D. The discharge of the three members of the mine committee and
the 19 employees
1. The mine committee
On or about May 16, 1938, the respondent employed three new
employees from West Virginia named Gray, Lowe, and Caputo, as
track workers to maintain and lay tracks inside the mine. At the
time these men were employed there were former employees who had
been laid off by reason of the recent mechanization still unemployed.
Members of the Union believed that some of these former employees
should have had these jobs. On May 22, 1938, Roy Dugan, as presi-
dent of the Union, after a discussion between the mine committee
and the West Virginia men, called a special meeting of the Union
and invited the three men to attend. At the meeting these three
men were informed that former employees of the respondent and
members of the Union were still unemployed. These three new
employees quit their jobs and returned to West Virginia. Superin-
tendent Park was incensed over this incident and claimed that the
mine committee had interfered with the operation of the mine. Park
testified without contradiction and we find, as did the Trial Exam-
iner, that by reason of the mechanization of the mine, heavier mo-
tive equipment was used and operated at higher speeds than under
the former type- of operation. These changes necessitated the use
of heavier rails and a better roadbed and required the services of
more highly skilled and experienced track layers to do this work.
Park testified that none of the former employees possessed such
experience . For that °reason the three West Virginia men were em-
ployed. These men had such experience and were all members of
the U. M. W. A. but had not transferred their membership to the
Union before they had quit.
On May 25, 1938, shortly following the incident of the quitting
of the above-mentioned track layers, the mine committee had a meet-
ing with Superintendent Park. The testimony is somewhat contra-
dictory as to the subject matters discussed, but it appears that there
was some discussion involving the hire of new employees, the en-
forcement of the rule requiring the wearing of goggles while men
were riding on the man trip, and probably over the question of main
haul motormen and snappers working through ' the dinner hour.
Park denied that the latter question was discussed on this occasion.
He admitted that he was incensed because the track layers had quit
WEIRTON COAL COMPANY 1269
and told the committee that it was interfering with the management
and operation of the mine. Dugan stated that the respondent was
imposing on the men by insisting that they-wear goggles on the man
trip before the question had been submitted to the mine committee
and an agreement on the question reached. The committee also tes-
tified that it raised objections to the practice of working motormen
and snappers through the dinner period. Park denied that this
question was discussed, but testified that it had been discussed on
previous occasions. Park testified that he told Dugan that "This
company has a million and a half dollars invested in this plant and
they expect to work it, but I don't see how they are going to do it
if you continue on interfering with the mine management the way
you are." The mine committee claimed that Park had said that
the respondent would spend a million and a half dollars to get rid
of men like Dugan. The committee left with a final statement by
Dugan. "Well, goddam it I will show you if you can run it." There
was no denial by the committee that such statement was made at
the end of the meeting, although all three members were called as
rebuttal witnesses. This final statement made by Dugan tends to
corroborate Park's testimony, and we find his testimony to be true.
Following the above-mentioned meeting Roy Dugan called a
special meeting of the Union in the late afternoon. He related to
those present what had transpired at the earlier meeting of the
mine committee with'Park. Motions were offered and passed at this
meeting, one that the motormen and snappers on the main haul road
refuse to work through the so-called dinner hour and another that
men riding on the man trip should refuse to wear goggles until the
question was negotiated with the Union.
Later during the evening of May 25, following this union meeting,
the men reporting to ride into the mine on the 10:20 p. in. man trip
refused to wear their goggles. The foreman and assistant foreman
riding in on the trip told them they would either have to wear their
goggles or the man trip would not go in. After a slight delay the
men put them on and the trip went in. On the following morning,
May 26, on the 6:20 man trip the men also refused to wear their
goggles but after some discussion between the men and their foremen,
they put them on and the trip went in. Throughout the balance of
the day on May 26 there was a delay in starting each, man trip because
the men who reported to work refused at first to wear their goggles,
but after listening to statements made to them by the various foremen
and assistant foremen on their shifts, eventually put them on and the
man trips went in except on the 10:20 p. m. man trip that evening.
On this occasion the men refused to wear the goggles. They were in-
formed that they would have to wear them if they wished to ride in on
451269-42-vol. 34-81
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the man trip, that otherwise they could walk in and work through their
shift. On the morning of the 27th of May, the men again refused to
wear their goggles or walk in and throughout the day on all regular
scheduled man-trip runs, the men reporting stayed in the man trip
for a considerable period of time and refused to wear the goggles or
walk into the mine. The various shifts after sitting in the man trip
for a time then left the mine. Hence no work was done on any of the
shifts on May 27.
After the union meeting adjourned on May 25, Roy Dugan and
James Mauritz of the mine committee stopped at Motorman Steve
Rable's house. They told him of the action taken at the meeting in
regard to the dinner hour. Duda, his snapper, had attended the meet-
ing. Rable and Duda quit working at 11 a. m. on May 26. The trans-
portation boss called Rable on the telephone and asked why the main
haul trip was not moving. Rable replied that the mine committee
had ordered the motorman and snapper to take their dinner hour.
Both men were called to the office of the transportation boss where
Mine Foreman Bradburn questioned them. Rable told him also that
they had been ordered by the mine committee to stop working through
the dinner hour. Bradburn thereupon said they should take their
working orders from the mine bosses and discharged both men.
After discharging Rable and Duda, Bradburn called Superintend-
ent Park and informed him of the incident. Park instructed him to
write out discharge slips for Roy Dugan, James Mauritz, and Peter
Berish, the members of the mine committee. These discharge slips
were inserted in the time-card racks of the three mine committeemen
and, shortly after they were placed in the rack, the men involved ob-
tained them. The reason for the discharge noted on the slips was
"Interfering with the operation of the mine."
On the second shift on May 26 Motorman Mike Seper and Russell
Harford, his snapper, also quit working at the dinner hour at 7 p. m.
Lew Willets, the mine foreman on their shift, asked them why they
refused to obey the orders of the transportation boss, Patt Layhew.
Seper replied that they had been given orders by the mine committee
not to work during the dinner hour. Harford also, gave a similar
answer. Willets discharged both of these men. On the reopening of
the mine in September 1938, Rable, Duda, Seper, and Harford were
all reemployed.
The general agreement is not silent upon the question of interference
by members of the mine committee. After reciting the duties of the
mine committee in paragraph 41, hereinbefore set forth, the general
agreement provides :
42. The Mine Committee shall have no other authority or exer-
cise any other control, nor in any way interfere with the operation
WEIRTON COAL COMPANY 1271
of the mine; for violation of this clause any or all members of
,the Committee may be removed from the Committee and shall be
ineligible to be re-elected or to serve as a Committeeman, or
Committeemen, during the remaining term of this Agreement.
The Trial Examiner found, and we find, that the mine committee
was discharged after the dinner hour incident because that incident
climaxed a series of acts alleged by the respondent to amount to
interference with the operation ofthe mine. We shall discuss below
our conclusions with respect to these discharges.
2. The discharge of 19 'employees on June 23, 1938
After the mine committee and the two main haul motormen and
snappers were discharged on May 26, Roy Dugan, as president of the
Union, called another meeting of the Union on the same evening.
Dugan informed those present that the mine committee had been dis-
charged for alleged interference with the operation of the mine and
the main haul motormen and snappers for refusing to work through
the dinner hour. A motion was passed at this meeting that the mem-
bers picket Grover Dugan and other bosses who operated, the main
haul motors after the discharge of the regular operators. After this
union meeting of May 26, 1938, the employees reporting for the third
shift refused to wear their goggles on the man trip and walked into
the mine instead of riding in. At about 12:30 a. in. on May 27,
picketing was started at the home of Grover Dugan, a fire boss who,
with Emil Crampe, another boss, operated the main haul motor to
fill out the shift after Rable and Duda were discharged at 11 a. in. on
May 26. Beginning with the first shift on May 27, the employees on
all shifts refused to wear their goggles on the man trips and after
sitting in the man trips for varying periods of time, walked out of
the mine. On May 28, the lampman, Harold Haney, pursuant to
instructions issued by Park, refused to give out lamps to the em-
ployees reporting for work, and thereafter the mine did not operate.
On the. morning of May 28, Bradburn went over to the lamp house
and had a discussion with the employees who were standing there.
Concerning this conversation, Bradburn testified on cross-examination :
I left my office and went toward the lamp house and the men
gather around me and asked what to do to get things started
again, to get to work, to resume operations. I tried to explain
to them or I told them to wear the goggles and go to work and
then take it up in accordance with the agreement and that is when
I was told that they had a committee to take it up and I told
them at that time that their present committee was discharged
and was inactive.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A number of union members testified that Bradburn told the em-
ployees assembled at the lamp house that the respondent would not
discuss the dispute with the old mine committee and that when the
Union elected a new mine committee the respondent would discuss
the matter. Andrew Domen, an employee, testified that, on the morn-
ing of May 28, he asked Park if the mine was working and that Park
answered: "No. When the men get together and put a new mine
committee in' and a new president of the local, the mine will go back
into operation." The Trial Examiner credited and we credit the
testimony of these witnesses as being substantially correct, considering
it with Bradburn's testimony which offers substantial corroboration
that this was the position of the respondent.
Grover Dugan, a fire boss, and a few other minor supervisory officials
were stopped from going to work for all, or substantially all, of the
time from May 27 to May 31, 1938. Beginning about May 31, the
picketing was extended to cover substantially all the bosses. Mine
Foreman Bradburn testified that it was necessary to have five men
per shift to make necessary inspections, make emergency repairs in
case of broken timbers, and to take other precautionary measures to
maintain the mine in a safe condition and that for most of the time
during the picketing only two bosses were able to get in on the first
shift and one on the second. The union members who testified' denied
that they stopped any bosses from entering the mine by threats or
otherwise, and stated that only moral persuasion was attempted;
but approximately 20 of the mine bosses testified that they were
stopped by pickets and did not report to work, because they feared
physical injury if they persisted in going in to work. In view of
our findings below we need not resolve this conflict in testimony.
William Hynes, president of District No. 4 of, the Union, and Mc-
Closkey, a mediator of the State Department of Labor, met with the
members of the Union on June 14, 1938. They advised the men to
cease the picketing as the respondent refused to negotiate, contend-
ing that the men were on strike in violation of the contract. Section
53 of the Union's contract provides that a strike or stoppage of work
shall be a violation of the agreement and that the mine operator is
absolved from any obligation to discuss matters in dispute during a
strike. Although the Union contended that there was no strike, and
so stated to McCloskey at the union meeting on June 14, 1938, the
Union passed a motion to return to work under the agreement and
picketing was thereafter discontinued.'
4 In Matter of American Manufacturing Concern and Local No. 6, Organized Furniture
Worker8, 7 N. L. R. B. 753, the Board stated : "A strike exists when a group of employees
ceases work in order to secure compliance with a demand for higher wages, shorter hours,
or other conditions of employment, the refusal of which by the employer has given rise to a
labor dispute. The cessation of work by a group is no less a strike because the group itself
may not have considered its action to constitute a strike."
WEIRTON COAL COMPANY 1273
During the picketing and shortly thereafter, the mine foremen and
other bosses reported to Superintendent Park and Mine Manager
Cassidy their experiences in trying to get to work. On the various
picket lines there were groups of men varying from 20 to approxi-
mately 150. The bosses gave the names of those on the picket lines
whom they considered most active in the steps taken to keep them out
of the mine and these bosses also testified as to incidents surrounding
the picketing. After receiving and considering these reports, Cassidy
and Park decided to discharge the 19 employees named in Appendix
A hereof. This group was discharged on June 23, 1938, 9 days after
the picketing had been discontinued. The respondent also caused
eviction notices to be served on all of this group who lived in
respondent-owned houses in Isabella.
The respondent reopened the mine and resumed operations about
September 15, 1938. All men were returned to work shortly there-
after excepting those five men discharged from the labor gang in
April 1938, the three members of the mine committee discharged on
May 26, 1938, as previously considered herein, and the men dis-
charged on June 23 whose cases are discussed in this section.
Although none of the 19 employees named in Appendix A nor the
members of the mine committee attempted to present their discharges
as grievances in accordance with the provisions of the general agree-
ment relating to discharges, in -October 1938 and thereafter Cassidy
and Park held several meetings with Hynes in which they discussed
the discharges of the 19 employees and of the members of the mine
committee. Cassidy and Park testified that at these meetings Cas-
sidy offered to take up the cases of the 19 employees individually and
to reinstate any person with respect to whose discharge it was shown
that-the respondent was in error. They further testified that Cassidy
suggested that those employed elsewhere be eliminated from the dis-
cussions for the time being. They stated that Hynes admitted that
the discharges of the 19 employees and the mine committee were
justified, but that they were pressing him to'take action on their
cases. Hynes denied that at any of these conferences he admitted
that the discharges were justified. He testified that he asked Cassidy
"what basis we could have for trying to adjust the proposition and
if he had anything to suggest to us for adjusting it and the answer
was `none of them."' However, he admitted that Cassidy several
times suggested that each case be considered individually and that
those employed elsewhere be eliminated from the case. Hynes was
not agreeable to the suggestion. With respect to discussing the cases
individually, Hynes testified that they did not get "that far" and that
he "wouldn't say that I wouldn't agree to it, but I could find no basis
for getting anywhere."
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Conclusions with respect to the discharges of the mine committee
and the 19 employees
The respondent contends that the members of the mine committee
were discharged for interfering with the operation of the mine and
that the 19 employees were discharged for their conduct on the picket
line. It it not necessary to consider these contentions 5 in as much as
we find that these employees were not discharged for union member-
ship or activities. We are, in part, impelled to this conclusion be-
cause the record shows that practically all the respondent's employees
are, and for some time have been, members of the U. M. W. A., that
the respondent for several years has recognized and entered into con-
tractual relations with the U. M. W. A., and that the respondent
during that period without objection has checked off dues to the
U. M. W. A. Moreover, the discharged employees did not attempt to
avail themselves of the provisions of the general agreement with re-
spect to discharges. Although the respondent's position was that
these men were discharged for cause, it nevertheless expressed a com-
plete willingness to discuss each case on its merits and correct any
error it may have made. Under the circumstances we find no intent
on the part of the respondent to discourage union membership or
activity nor did the discharges have such effect.
We find that the respondent did not discharge the members of the,
mine committee or the 19 employees named in Appendix A because
of union membership or activities. The allegations of the complaint
with respect to them will accordingly be dismissed.
E. Other acts of interference, restraint, and coercion
Proof was offered by witnesses called by the Board concerning
numerous acts and statements attributed to the respondent's officers
and supervisory officials which have not heretofore been discussed.
These acts or statements were either denied by witnesses called by the
respondent, which denials the Trial Examiner credited, or else were
shown to have been made under circumstances which he found did not
warrant a finding that these acts and statements were in violation of
the Act. No exceptions were filed to such finding.
We find, as did the Trial Examiner, that such alleged acts and state-
ments were not in violation of the Act. Accordingly, the allegations
of the complaint with respect to such acts and statements will be
dismissed.
5But see Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472, modified in another
particular in Republic Steel Corporation v. N. L. R. B., 311 U S. 7; N. L. R B. v. Elkland
Leather Co ., Inc., 114 F. (2d) 221 ; N. L. R. B. v. Kentucky Fire Brick Co., 99 F. (2d) 89.
Cf. N. L. R. B. v. Fan8teel Metallurgical Corp., 309 U . S. 240.
WEIRTON COAL COMPANY 1275
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. The operations of the respondent occur in commerce, within the
meaning of Section 2 (6) of the Act.
2. United Mine Workers of America, Local 6295; District No. 4
of the United Mine Workers of America; and United Mine Workers
of America are labor organizations within the meaning of Section 2
(5) of the Act.
3. The respondent has not discriminated in regard to the hire and
tenure of employment of Nick Cavalier, Louis Congelio, Clifford
Marks, John Ountrakis, and Leo Reckner, former employees in the
labor gang, of Peter Berish, Roy Dugan, and James Mauritz, members
of the mine committee, or of Joseph Berish, Enoch Binion, Thomas
Davis, Andrew Domen, Dan Ference, Clifton Jackson, William John-
son, John Kucik, Dominic Maraney, Steve Mehalik, George Merry-
man, Sr., Jesse Nedley, Tony Rogula, Joseph Spencer, Albert
Tokarcik, John Tokarcik, Milan Ujchick, William Wilkins, Jr., and
Walter Yukish, the employees named in Appendix A hereof, within
the meaning of Section 8 (1) or (3) of the Act.
4. The respondent has not interfered with, restrained, or coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act
within the meaning of Section 8 (1) of the Act.
ORDER
Upon the-basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the com-
plaint against the respondent, Weirton Coal Company, Isabella,
Pennsylvania, be, and it hereby is, dismissed.
EDWIN S. SMITH , dissenting in part :
I dissent from the holding of the majority that the respondent
has not discriminated in regard to the hire and tenure of employ-
ment of the members of the mine committee and the 19 employees
named in Appendix A. Neither the harmonious labor relations be-
tween the respondent and the Union in the past nor the fact that
these employees did not avail themselves of the remedies provided
by the general agreement is determinative, in the light of the record,
of the issues involved herein or justification of the majority holding.
Section 10 (a) of the Act provides that the Board's power to prevent
unfair labor practices affecting commerce "shall be exclusive, and
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall not be affected by any other means of adjustment or prevention
that has been or may be established by agreement , code , law, or
otherwise ." 8 No convincing reason exists in this case for the Board's
not proceeding to a determination of the discharges on the evidence
as adduced at the hearing.
With respect to the members of the mine committee , I would find
that by summarily discharging the mine committee as a group for
engaging in concerted activities , a penalty not provided for in the
general agreement , the respondent discouraged concerted activities
by the Union and the members of the mine committee, thereby dis-
couraging membership in the Union and interfering with , restraining,
and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
As to the 19 employees , I would find that their strike activities
were not such as to place them outside the protection of the Act
and that their discharges for engaging in such activities constitutes
a violation of Section 8 (3) of the Act. While the picket line was
effective there is no showing of such violence or threats thereof as
to warrant a finding that the discharges of these employees were
justified.T
I would order that the members of the mine committee and the
19 employees named in Appendix A be reinstated to their former or
substantially equivalent positions and that they be made whole for
any losses of earnings they may have suffered by reason of their
discriminatory discharges.
APPENDIX A
1 Joseph Berish
2. Enoch Binion
3. Thomas Davis
4. Andrew Domen
5. Dan Ference
6. Clifton Jackson
7. William Johnson
8. John Kucik
9. Dominic Maraney
10. Steve Mehalik
11. George Merryman, Sr.
12. Jesse Nedley
13. Tony Rogula
14. Joseph Spencer
15. Albert Tokarcik'
16. John Tokarcik
17. Milan Ujchick
18. William Wilkins, Jr.
19. Waltor Yukish
° See National Labor Relations Board v. Newark Morning Ledger Co ., 120 F. (2d) 266.
See cases cited in footnote 5.