West Kentucky Coal Co.

National Labor Relations Board - Board Decisions

Jun 21, 1940

24 N.L.R.B. 863 (N.L.R.B. 1940)

In the Matter Of WEST KENTUCKY COAL COMPANY and INTERNATIONAL
LONGSHOREMEN'S AssociATION, LOCAL No..1549
Cases Nos. C-148 and R-1389.-Decided June 91, 1940
Coal Mining • and Distribn .tin•g- Industry-Laterference , Restraint and Coer-
cion: attempts . by Company officials to induce employees who were members of
a union to renounce membership in that organization and to become members
of a union advocated by the Company ; speeches by Company official and the
granting of a voluntary pay increase for that purpose ; introduction of a repre-
sentative of the Company favored organization for purposes of solicitation-
Discrimination: charges of, dismissed-Unit Appropriate for Collective. Bar-
gaivnvng: employees of the Company at Memphis , Tennessee , excluding truck
drivers , supervisors , clerical and office employees , but. specifically including
watchmen , chutemen, pump tenders , firemen, deck hands, and laborers ; geo-
graphical isolation and functional coherence of ; desires of established organiza-
tion among employees as determinative of-Representatives : proof of choice;
finding in Intermediate Report as to union's majority in unit not excepted to;
no dispute as to-Collective Bargaining : failure by - employer to consider request
for ; employer ordered to bargain with union-Company Dominated Union: .
held unnecessary to 'consider allegations in complaint as to in view of Board's
prior determination of issue in regard to union named , in. the complaint , wherein
the Board ordered disestablishment of that organization-Investigation of Rep-
resentatives : petition for, dismissed in view of -order to bargain.
Mr. Marion Prowell, for the Board.
Mr. James G. Wheeler, of Paducah, Ky., for the respondent.
Mr. Charles G. Franklin, of Madisonville, Ky., for E. M. B. A.
Mr. Bonnell Phillips, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On April 28, 1938, International Longshoremen's Association, Local
No. 1549, herein called the Union, filed charges and on January '28,
1939, filed amended charges with the Regional Director for the Tenth
Region (Atlanta, Georgia), alleging that West Kentucky Coal Com=
pany,l Sturgis; Kentucky, herein called the respondent, had engaged
i Designated in many of the formal papers herein as West Kentucky Coal Company, Inc.
A motion to conform them to the correct corporate name was granted at the hearing without
objection.
24 N. L. R. B., No. 91.
' 863
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and was engaging in unfair labor practices affecting commerce
within the meaning of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On February 20, 1939, the Union filed
with the Regional Director a petition alleging that a question affect-
ing commerce had arisen concerning the representation of employees
at the respondent's Memphis, Tennessee, plant, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the Act.? On March 13, 1939, the Union duly filed second
amended charges of unfair labor practices.
On April 5, 1939, the National Labor Relations Board, herein
called the Board, acting pursuant to Section9 (c) of the Act and
Article III,. Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation in the
representation case and authorized the Regional Director to conduct
it and to provide for an appropriate hearing upon due notice, and,
acting pursuant to Article III, Section 10 (c) (2), and Article II,
Section 37 (b), of said Rules and Regulations, ordered that the repre-
sentation proceeding _ and the proceeding initiated by the filing of
unfair labor practice charges be consolidated for the purpose of
hearing.
Thereafter, upon the second amended charges, the Board, by the
Regional Director, issued its complaint, dated May 1939, against 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), (2), (3), and (5) and Section 2 (6) and (7)
of the Act. Copies of the complaint, the petition, the Board' s order
of consolidation and direction of investigation and hearing, and
notices of hearing on the complaint and the petition were duly served
upon the respondent, the Union, and the Employees' Mutual Benefit
Association, herein called the E. M. B. A.
With respect to the unfair labor practices, the complaint alleged
.in substance: (1) that the respondent, prior to February 1938, and
at all times thereafter, fostered, aided, encouraged, and dominated
the E. M. B. A.; (2) that the respondent during the month of Feb-
ruary 1938, and at all times thereafter, refused to bargain collectively
with the Union as the exclusive representative of employees of the
respondent in a unit appropriate for collective bargaining, although
the Union became, (luring the month of December 1937, and has at all
times thereafter remained the duly designated representative of a
majority of the employees in such unit; (3) that the respondent,
on or about May 12, 1939, discharged William Coleman, and on or
about August 9, 1939, discharged James Allen, and has since refused
2 On March 9, 1940, the respondent filed an answer to the petition , controverting certain
allegations in the petition.
WEST KENTUCKY COAL COMPANY 865
to employ their because . they joined and assisted the Union; and
(4) that by these acts, by advising, urging, and warning its employees
not to join or assist the Union , by soliciting and urging its employees
to join the E. M. B. A., and by other acts , the respondent interfered
with, restrained, And , coerced its employees in the exercise of "rights
guaranteed in Section 7 of the Act.
On May 10, 1939, the respondent filed its answer , iin substance
denying that it had engaged ' in or was engaging in the alleged unfair
labor practices . On May 17, 1939 , the E. M. B. A. filed a motion
with the Regional Director to intervene in the proceedings.
Pursuant to notice , a hearing was held on May 22 and 23, 1939,
at Memphis, Tennessee , before Joseph F. Kiernan, the Trial Exam-
iner duly designated by the Board . At the commencement of the
hearing the Trial' Erainiiner granted the motion to intervene pre-
viously filed by the E. A B. A. Thereafter the E. Al. B. A. filed an
answer, in substance denying the allegations of the complaint that the
E. M. B. A. was fostered, aided, encouraged , or dominated by the
respondent , amid alleging affirmatively that since September 1995, the
E. M: B. A. had functioned as a bona fide labor organization repre-
senting a large majority of the respondent 's employees . The Board,
the respondent , and the E. M. B. A. were represented by counsel and
participated in the hearing . Full opportunity to be heard, to ex-
arnine and cross-examine witnesses and to introduce evidence was af-
forded all parties . At the close of the hearing , counsel for the Board
moved to amend the complaint to conform to the proof . The motion
was granted. During" the course of the hearing the Trial Examiner
ruled 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
Armed.
On February 1, 1940, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, finding
that the respondent had. engaged in unfair labor practices within the
meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7)
of the Act. In his Intermediate Report the Trial Examiner recom-
mended that the respondent cease and desist from engaging in the
aforesaid unfair labor. practices,, and,, affirmatively, upon request bar-
gain collectively with the Union as the exclusive representative of its
longshoremen employees at Memphis, Tennessee, and withdraw all
recognition from and completely disestablish Employees' Mutual
Benefit Association as representative of its employees. The Trial
Examiner further. found that the evidence did not support the allega-
tions in the complaint that the respondent discharged James Allen
or William Coleman in violation of Section 8 (3) of the Act, and
recommended that the complaint be dismissed in that respect.
866 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
With respect to the Trial Examiner's recommendation that the re-
spondent withdraw recognition from and disestablish. Employees'
Mutual Benefit Association as representative of its employees, the
Board considered the relationship existing between this organization
and the respondent in Matter of West Kentucky Coal Company and
United Mine Workers of America, District No. 23,3 in which it found
that the respondent dominated and interfered with the administration
of said Employees' Mutual Benefit Association and contributed sup-
port thereto. The Board, having found that the respondent thereby
engaged in an • unfair labor practice within the meaning of Section
8 (2) of the Act, ordered the respondent to withdraw recognition
from and disestablish Employees' Mutual Benefit Association as rep-
resentative of its employees for the purpose of collective bargaining.
At the present writing the Board is seeking enforcement of its order
in the United States Circuit Court of Appeals for the Sixth Circuit.
Under these circumstances, a consideration of this issue in the present
proceedings is unnecessary and, accordingly, we shall make no find-
ings of fact or conclusions of law herein, based upon the allegation
in the complaint that the respondent has engaged in an.unfair labor
practice within the meaning of Section 8 (2) of the Act.
After the hearing and again. after issuance of the Intermediate
Report the respondent filed briefs with the Board. On February 9,
1940, the respondent filed exceptions to the Intermediate Report.
Thereafter, on April 25, 1940, pursuant to notice duly served upon the
parties, a hearing was held in. Washington, D. C., forAhe. purposes
of oral argument. Only the respondent appeared. It was repre-
sented by counsel and, presented oral argument. The Board has con-
sidered the briefs filed by the respondent and the exceptions to the
Intermediate Report and, in so far, as the exceptions are inconsistent
with the findings, conclusions of law, and order set forth below, finds
them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE. BUSINESS OF THE RESPONDENT
The respondent, a New Jersey corporation with its principal office
at Sturgis, Kentucky, owns and operates eight or more coal mines in
the State of Kentucky. During the year 1937, and for a number of
years prior thereto, approximately 59 per cent of the, coal produced by
the respondent in its aforesaid mines was shipped to points outside the
State of Kentucky, either.by railroad or by some 70 barges owned and
operated by. the respondent. Shipments by barge amount to between `
3 10 N. L. R. B. 88.
WEST KENTUCKY COAL COMPANY 867
6,000 and 12,000 tons of coal monthly, and are made from a point,
near Caseyville, Kentucky, to various discharging and distributing
points along the Ohio and- Mississippi Rivers, among them Rosi-
clare, Illinois;' St. Louis, Missouri; Paducah, Kentucky; 4 Memphis,
Tennessee; and Greenville, Mississippi. This proceeding ' is con-
cerned only with the respondent's operations at and near Memphis.
At Memphis the respondent owns and operates a coal distributing
yard. Opposite Memphis, on the Arkansas side of the Mississippi
River, the respondent moors a fleet of vessels, consisting of a house or
shanty boat, a pump boat, and some 6 to 12 coal barges. Loaded coal
barges, as they are brought down the river, are tied up at the Arkan=
sas moorings and are later transferred to the Memphis water front
by one of the two tugs stationed and operated by the respondent at
this point. The coal is then unloaded by means of a digger and
placed in a chute which conveys it, to the respondent's coal yard.
From there coal is delivered to consumers by truck. Over 5,000 tons
of coal a year are thus handled at Memphis. ' The respondent, in all
its operations, employs over 2,400 persons. At Memphis the respond-
ent has approximately 50 employees.
II. THE ORGANIZATIONS INVOLVED
International Longshoremen's Association, Local 1549, is a labor
organization. affiliated with the American Federation of Labor. It
admits to membership firemen, deck hands, chutemen, crane operators,
hoisters; pump tenders, coal workers, and watchmen.
Employees' Mutual Benefit Association is an unaffiliated labor. or-
ganization admitting to membership employees of the respondent.
III. ' THE UNFAIR LABOR PRACTICES
A. The sequence of events
On or about December 31, 1937, the Union received its charter from
the International Longshoremen's Association, granted specifically
to firemen, deck hands, chutemen, crane operators, hoisters, hop ten-
ders, coal workers, and watchmen. At this time 17 of the 18 men
employed by the respondent at Memphis who were eligible to mem-
bership within the above classification became charter members of
the Union. , On or about February 17, 1938, William Coleman and
Thomas Watkinz, president and business manager of the Union,
respectively, submitted a proposed contract containing provisions as
to wages, hours, and other conditions of employment to the respond-
'At Paducah the respondent also maintains a barge plant where it engages. in the.con-
struction 'and repair of its coal barges.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's Memphis manager, E. A. Jeffords. Jeffords in reply informed
the onion representatives that he lacked authority to enter into col-
lective bargaining negotiations with the Union, but that he would
forward the proposals to his superior officers. The proposed contract
was thereafter sent to R. E. Vennum in Paducah, Kentucky. -
Approximately 2 weeks after the proposed contract had been sub-
mitted, Vennum, the respondent's transportation manager, came to
Memphis "to advise the men regarding everything in connection with"
collective bargaining. On this occasion, and again at a later' date,
Vennum conferred with various groups of union members, informing
them iii effect that they were free to join any labor organization they
preferred, but that a majority of the respondent's employees held
membership in the E. M. B. A., and that "if any bargaining 'Was to be
done, I felt that the Association (E. M. B. A.) would necessarily be
the bargaining agency, because they had a majority of the men." Ven-
num then proceeded to outline some of the benefits that the
E. M. B. A. conferred upon its members, stating, in substance, "that
when you get old the E: M. B. A. will pension you and will do more
for you than any other union there is, and the company [respondent]
will recognize it more than any other union." Several of the em-
ployees testified that they had not been aware of the existence of
the E. M. B. A. prior to Vennum's first speech on the subject of
collective bargaining, and that they had informed him at the con-
clusion of his remarks that they did not wish to join that organi-
zation. Upon learning of their decision Vennum stated : "Everybody
gets a raise from today on of 75 cents a day." . The foregoing narra-
tion of events is, in substance, undenied, and it is admitted that the
employees to whom Vennum addressed his speech received imme-
diately thereafter a wage increase of 75 cents a day. Vennum testi-
fied that this raise was not, however, confined solely to Memphis
employees, but was also extended to the respondent's employees at
Paducah and Caseyville.
On the day that the increase in pay became effective, Jeffords
appeared on a tug operated by union members and introduced one
Wilcox, the secretary of the E. M. B. A., who said that he had "come
down to write you boys up in the E. M. B. A.; that the company
would recognize only the E. M. B. A."; and that that organization
"would pay the men more money and would do more for them than
any other Union." Other than making the above-described endeavors
to enroll' the union members in the E. M. B. A., the respondent made
no reply to the Union's. attempt to institute collective bargaining.
Having received no response from the proposed contract which had
been submitted in February 1938, the Union claimed to have uiian
imously approved and to have submitted, through Watkinz, a second.
WEST KENTUCKY COAL COMPANY 869''
proposed contract in June or July 1938. Jeffords, to whom the con
tract was alleged to have been submitted, denied ever having received
such a docliinent.
B. The refusal to bargain collectively
1. The appropriate unit
A description of the respondent's operations at Memphis is given
in Section I above. The employees Who perform these operations:
may be divided into three groups: (1) longshoremen, that is, those
employees who handle and unload barges,5 serve on .the respondent's
tugs, perform unskilled manual labor, and assist in the control of'
machinery used to transfer coal from the barges to the "respondent's
coalyard; (2) truck drivers; and (3) clerical and office employees..
The complaint alleges that the employees of the respondent at
Memphis, Tennessee, excluding truck drivers, supervisors, clerical and.
office employees, but specifically including watchmen, chutemen, pump
tenders, firemen, deck hands, and laborers; constitute an appropriate
unit for. the purposes of collective bargaining. This definition corre-
sponds in substance with the membership limitations of the Union,.
and includes those employees characterized above as, and herein col-
lectively called, longshoremen.
The respondent contends that the longshoremen. at Memphis do not
constitute an appropriate unit, urging in its brief and at oral argu-
ment that the employees in its entire transportation department,,
which would include employees of this type at other distribution.
points, together with those at Memphis, and also some 65 or more,
employees who operate the three steamboats used by the respondent
in towing its coal barges, constitute a unit appropriate for collective,
bargaining purposes.
The record does not show, however, that any attempt at self-organi-
zation has been made on this basis. On the other hand, as found
below, the respondent's Memphis longshoremen have indicated their
free choice as to the appropriate unit by endeavoring to obtain the
benefits of collective bargaining through majority membership in
the Union. As far as the record reveals, the longshoremen at Memphis,
have little or no contact with similar employees at other distribution
points, and thus constitute, in our opinion, a geographical entity
suitable for purposes of collective bargaining.6 We find, moreover,.
Included in this category ' are watchmen whose duties , besides guarding the respondent's.
fleet , include "sparring out" the vessels in the fleet and keeping them pumped free of bilge
water.
e See Matter of American Radiator Company and APii.algamated Association of Iron, Steel;
t Tin Workers Lodges, 1199 and 1629, 7 N. L. R . B. 452.
283035=42-vol. 24-56
870 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
from certain contracts submitted in evidence, that units of workers
engaged in labor similar to that performed by the respondent's
Memphis longshoremen have organized on a similar geographical
basis and have successfully achieved recognition from other employers
at Memphis.7
. We find that the employees of the respondent at Memphis, Ten-
nessee, excluding truck drivers, supervisors, clerical and office em-
ployees,' but specifically including watchmen, chutemen, pump
tenders, firemen, deck hands, and laborers, at all times material herein
constituted. and they now constitute a unit appropriate for the pur-
poses of collective bargaining with respect to wages, hours of em-
ployment, and other conditions of employment, .and that said unit
insures to employees of the respondent the full benefit of their right
to self-.organization and to collective bargaining and otherwise effec-
tuates the policies of the Act. -
2. Representation by the Union,of a majority in the appropriate unit
Watkinz, the Union's business manager, and Bovan, the Union's
secretary, both testified without denial. that the Union represented
17 of the 18 employees in the. appropriate unit on or about January
1, 1938.0 The names of these members were given in their testimony.
An examination of the respondent's pay roll of February 17, 1940,
the date upon which Coleman and Watkinz submitted the proposed
contract to.Jeffords, reveals that 16 employees were in the appropriate
unit on that *'date and that the names of 15 of them correspond to
those given by Watkinz and Bovan.
The pay roll of the respondent for the period ending February 16,
1939, was also introduced in evidence, as were lists prepared by the
secretary of the Union of clues-paying members of the Union for
January and February 1939. Upon comp'trison, we find that the
Union on February 16, 1939, represented 11 of the 16 or 1710 em-
ployees in the appropriate unit at that time.
'Local No. 1506 of the International Longshoremen 's Association has signed bargaining
contracts with the Southern Transfer Company , at Memphis, and. with the Jones & Laughlin
Steel Corporation (covering longshoremen at its Memphis plant). Local No. 1400 has a
similar contract with The Federal Barge Lines, at Memphis.
8 The respondent ' s Memphis employees above excluded obviously perform . work different
in nature from the respondent ' s longshoremen , and are not eligible to membership in the
Union.
'While there was no documentary evidence introduced at the hearing to support this
testimony , the respondent did not question this fact, but stated , at oral argument, that
"according to the evidence , they [ respondent 's Memphis longshoremen ] all joined the Union,
with the exception of one man." In explanation . of the lack of documentary evidence, it
was testified that the Union's records had been destroyed by fire, and that • Bovan's copies
of the minutes of the Union 's meetings had been lost.
10 we are unable to determine the status of west Weeden , who was classified by Jeffords
both as a deck hand on the digger and as a truck driver. .
WEST KENTUCKY COAL COMPANY 871
We_find.that on February 17, 1938, and at all times thereafter, ,the
Union .was the duly designated representative of a majority of the
employees in the appropriate unit and that by virtue-of Section 9 (a)
of the Act, was the exclusive representative of all the employees in
the unit for the purposes of collective bargaining."
3. The refusal to bargain collectively
As before 'stated, the Union submitted a proposed contract contain-
ing provisions in respect to wages, hours of employment, and other
conditions of employment, to Jeffords on or about February 17, 1933.
Jeffords forwarded this contract to Vennum, and there is evidence in
the record to show that Vennum subsequently discussed the proposed
contract with C. F. Richardson, the respondent's president. No effort
to bargain with the. Union or even to determine the Union's status
as the majority . representative of the respondent's Memphis ' long-
shoremen was thereafter made.
The Union claims to- have submitted a second proposed contract.
to Jeffords in June or July 1938. Jeffords denies having received this
contract. In view of the clear request for collective bargaining im-
plicit in the submission of the first contract, we think it unnecessary
to resolve this conflict. The respondent contends that the first contract
was unsigned and that consequently the authority..of Watkinz or
Coleman to represent any group of its employees was not shown.
Watkinz's testimony was undenied, however, that he had informed
Jeffords that he was business manager, and Coleman president, of
the Union at the time the contract was submitted. It is, moreover,
clear that Vennum, in his speeches to the respondent's longshoremen
as set forth above, recognized that these proposals had emanated from
them as members of the Union.13
' We find that the respondent, having received a request from the
Union for collective bargaining inrrespect to wages, hours of employ-
ment, and other conditions of employment on or about February 17,
1938, thereafter refused to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit.
C; Interference, restraint, and coercion
We find that the speeches of Vennum, delivered after the Union's
attempt to bargain collectively on February 17, 1938; the introduction
"A similar finding was made by the Trial Examiner in his Intermediate Report. The
respondent excepted to,this-finding only on the ground that the unit was not appropriate,
and did not question the finding as to majority representation.
11 Vennum prefaced one of his speeches, according to the undenied testimony of a union
member, with the query: "How come you boys want to join the I. L. A. [the Union], why
don'tyou:join the E.'M .. B. A.?"
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Wilcox, an E. M. B. A. representative, by Jeffords; and the grant-
ink of a pay increase immediately following the refusal of the
respondent's employees to join the E. M. B. A., had the purpose of
discouraging membership in the Union and of encouraging member-
ship in another labor organization-; the E. M. B. A.
We find that the respondent, by the aforesaid actions 14 and by its
refusal to bargain collectively with the Union, interfered with, re-
strained, and coerced its employees in the exercise of rights guaran-
teed in Section 7 of the Act.
D. The alleged discriminatory discha' ges
The complaint alleged that the.respondent had discriminatorily dis-
charged. James Allen and William Coleman. No evidence was adduced
at the hearing to support the allegation with respect to James Allen.
The' Trial Examiner in his Intermediate Report found that William
Coleman had not been discharged because of union membership or ac-
tivity. No exception to this finding has been filed. Upon an examina-
tion of the record, we concur in the Trial Examiner's finding in respect
to the discharge of Coleman. The allegations in the complaint charging
the respondent with having discriminated against James Allen and
William Coleman in violation of Section 8 (3) of the Act will be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR . PRACTICES UPON COMMERCE
We find that the activities of the respondent.set forth in Section
III above, occurring in connection. with the operations of the respond-
ent described in Section I above, have a close, intimate; and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and,
in aid of such cease and desist order, io take affirmative action which
we find will effectuate the policies of the Act.
We have found that the Union, on February 17, 1938; and at all
times thereafter was and that it is the exclusive representative of the
employees in the appropriate unit. Having further found that the
respondent has refused to bargain collectively With the Union as such
As to the voluntary pay increase granted by Verindiii , see M. E. Rif wbliei .Company V.
National Labor Relations Board, 114 F. (2d) 432 (C. C. A. 7), decided May 8, 1940.
WEST KENTUCKY COAL COMPANY 873
i i
representative, we shall order it, upon request, to bargain collectively
with the Union as the exclusive representative of the employees in
the appropriate unit.
VI. THE PETITION
In view of the findings in Section III B above, as to the appropri-
ate unit and. the designation of the Union as the exclusive repre-
sentative of the respondent's employees in the appropriate unit, it is
not necessary to consider the petition of the Union for certification
of representatives.. Consequently, the petition for certification will
be dismissed.
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. International Longshoremen's Association, Local No. 1549, and
Employees' Mutual Benefit Association are labor organizations, within
the meaning of Section 2 (5) of the Act.
2. The employees of the respondent at Memphis,. Tennessee, ex-
cluding truck drivers, supervisors, clerical and office employees, but
specifically including watchmen, chutemen, pump tenders, firemen,
deck hands, and laborers, at all times material herein constituted and
they now constitute an appropriate unit for the purposes.of collective
bargaining, within the meaning of Section 9. (b) of the Act.
3. International Longshoremen's Association, Local No. 1549, is,
and has been at all times since February 1938, the exclusive repre-.
sentative of all the employees in such unit for the purposes of col-
lective bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing and continuing to. refuse to bargain collectively
with International Longshoremen's Association, Local No. 1549, as
the exclusive representative of its employees in the appropriate unit,
the respondent has engaged in. and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act, the respond-
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
7. The respondent has not discriminated in regard to hire and
tenure of employment of James Allen and William Coleman, thereby
discouraging membership in ' a :labor organization, within the meaning
of Section 8 (3) of the Act.
874 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
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
respondent, West Kentucky Coal Company, Sturgis, Kentucky, and
its officers , agents, successors , and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain , collectively with International Long-
shoremen's . Association , Local No. , 1549, as . the exclusive representa-
tive . of its employees at Memphis , Tennessee , excluding truck drivers,
supervisors , clerical and office employees , but specifically including
watchmen , chutemen; pump tenders, firemen , deck hands, and
laborers;
(b) In any other manner 'interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join , or assist labor organizations , to bargain collectively
through representatives of their own choosing , or to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request , bargain collectively with International Long-
shoremen's Association , ' Local No. 1549, as the exclusive representa-
tive of its employees at Memphis , Tennessee , excluding. truck drivers,
supervisors , clerical and office employees , in respect to rates of pay,
hours of employment, and other conditions of employment;
(b) Post immediately in conspicuous places on its digger, on its
vessels, and at other places in ' or - about its Memphis, Tennessee,
properties , notices to its employees , stating that the respondent' will
cease and desist in the manner set forth in 1 (a ) and (b ) and that
it will take the affirmative action set forth in 2 '( a) of the Order, and
maintain . such notices for a period of at least sixty (60) consecutive
days; .
(c) Notify the Regional Director' for the Tenth Region in writing
within ten (10 ) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED . that the complaint , in so far as it
alleges that the respondent has engaged in unfair labor practices
within the meaning of Section 8 ( 3) of the Act , and.the petition for
investigation and certification of, representatives be, and they hereby
are, dismissed.