Coal Creek Coal Co.

National Labor Relations Board - Board Decisions

Nov 19, 1951

97 N.L.R.B. 14 (N.L.R.B. 1951)

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the truck drivers and receiving clerk at the Em-
ployer's Dallas, Pennsylvania, plant, excluding packers, stores clerk,
and all other employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
COAL CREEK COAL COMPANY and JOSEPH GRANT, FRANK BLATNICK,
BEE BLY, WILLARD HUGHES, ARNIE ADAIR, RAWLINS THACKER,
ALFRED POWELL, ROBERT VAN WAGONER, JOHN HIMMELBERGER,
MAURICE FORBUSH, ELMER LE MARR, FLOYD GOLDING. Case No.
20-CA-485. November 19, 1951
Decision and Order
On May 7, 1951, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1), (2), and (3) of the Labor
Management Relations Act, as amended, and recommending that the
Respondent cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent had
not engaged in certain unfair labor practices in violation of Section
8 (a) (3) of the Act and consequently recommended dismissal of the
allegation of the complaint alleging the discriminatory discharge of
Joseph Grant.' Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief. The General Counsel
filed exceptions with respect to certain back-pay recommendations in
the Intermediate Report, and a supporting brief. The Respondent
has requested oral argument. This request is denied inasmuch as
the record and briefs, in our opinion, adequately present the issues and
the positions of the parties.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications.2
1 Because no exception has been filed to the ruling of the Trial Examiner recommending
dismissal of the 8 (a) (3) allegation as to Joseph Grant, we do not pass upon the merit
,of that ruling.
2 We make the following correction of minor misstatements of fact appearing in the
Intermediate Report which do not affect the ultimate conclusions
At page 6: Robert Van Wagoner testified that Campbell , on Saturday , requested the
employees to come to the mine Sunday night, before the Board election on Monday, and
that some of the employees , including himself, did so.
.97 NLRB No. 3.
COAL CREEK COAL COMPANY 15
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by certain conduct engaged in by P. M.
Campbell, the superintendent of the Respondent's mine, and by Grant
Powell, the husband of the Respondent's principal stockholder and the
actual operating head of the Respondent, as set forth in the Inter-
mediate Report. However, we do not rely i pon Powell's requirement
of March 6, 1950, that employees who had voted for the United Mine
Workers in the election held that day under auspices of the State
Industrial Commission, strike their names from the stock purchase
agreement, because this occurrence antedated by more than 6 months
the filing and service of charges in this case. See Section 10 (b) of
the Act.
2. The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (2) and (1) of the Act in that it formed,
dominated, and interfered with the administration of the Independent
Union, and contributed financial and other support to it, as set out
in the Intermediate Report .3
3. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (3) of the Act in that it discriminatorily laid off Floyd
Golding on March 23, 1950, and thereafter refused to reinstate him,
because of his membership in and activity on behalf of the United
Mine Workers.4 We find no merit in the Respondent's exception on
the ground that it lacked knowledge of Golding's union activities.
Among the evidence touching upon this point we note the uncontra-
dicted testimony of employees Himmelberger and Robert Van Wag-
oner that Golding responded immediately to Powell's request on
Footnote 2-Continued
At page 7: The completed collective bargaining agreement between the Respondent
and the Independent bore the date July 1, 1950; the record does not show the exact
date of its execution ; a rough draft contemplating a completed agreement was signed on
July 29, 1950-the date referred to by the Trial Examiner.
Footnote 15: Subsections ( 2) and ( 3) of this footnote are not entirely accurate as
the record lacks specific evidence that any resentment of employee Magnum by Powell, or -
of employee Garcia by Campbell , affected their membership in the Independent
At page 9: The reference to Golding 's work assignment on March 13 should be merely
that he was assigned to his usual job of dumping coal cars.
Golding was elected recording secretary at the UMW meeting held the night of March
21, not 22.
At page 11 : Robert Garcia and-Robert Williams were discharged on the night shift on
September 18, not 19 , by Foreman Eusel on orders of Campbell , rather than by Campbell
Powell discharged Campbell and Grant on September 19, not 20
' We find no merit in the assertion that the Respondent corporation , not having come
into existence until some weeks after the formation of the Independent Union, cannot he
found to have violated Section 8 ( a) (2) of the Act The record is replete with evidence
that effectual control and management of the mine was unaffected by the mere change to
incorporation as a method of doing business or by the short -lived lease to Campbell which
preceded the incorporation . Southport Petroleum Co. v. N L. R B, 315 U S 100; see
also Alexander Milburn Company, 78 NLRB 747.
' Clearly the record does not support the Respondent's contention that Golding , in filing
his own 8 ( a) (3) charge of discrimination , was acting as a "front" for the UMW. See
N. L. R B v. Augusta Chemical Co., 187 F 2d 63 ( C. A. 5).
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 6,1950,6 that the employees who had voted for the UMW in the
State-conducted election strike their names from the stock purchase
agreement. Nor do we find merit in the Respondent's contention that
Golding's somewhat exuberant conduct on the picket line after his
discriminatory layoff-in causing coal to be spilled from one of
Respondent's trucks-was, so serious as to render him unsuited for
reemployment by the Respondent.
4. We also agree with the Trial Examiner that the Respondent
violated Section 8 (a) (3) and (1) of the Act by discriminatorily dis-
charging Frank Blatnick, Bee Bly, Willard Hughes, Arnie Adair,
Rawlins Thacker, Alfred Powell, Robert Van Wagoner, John Himmel-
berger, Maurice Forbush, and Elmer LeMarr on September 21, 1950,
because they had signed and presented the petition to dissolve the
Independent Union the day before. However, we do not adopt that
portion of the Trial Examiner's findings to the effect that the employ-
ees' strike in protest against the discharges of superintendent Camp-
bell and employee Grant was also a cause of their discharges. Con-
trary to the Respondent's contention, the credible evidence-as
referred to by the Trial Examiner-clearly indicates that Powell
assigned as his reason for the discharges the employees' attempt to
dissolve the Independent Union. We therefore find that the Re-
spondent, upon the occasion when the striking employees returned in
a body offering to return to work conditionally, discharged them
forthwith because of Powell's own pro-Independent, anti-UMW
motives. Inasmuch as the Respondent chose to discharge these
strikers, who were still its employees, for a discriminatory reason
unrelated to the strike and its objective, we need not and do not pass
upon the question whether the discharges would have violated the Act
if they had, in fact, been directed against the strike activity here
involved.6
The Remedy
The General Counsel, urging that an offer by the strikers to return
to work after their discharge would have been futile, excepted to the
recommendation of the Trial Examiner that the 10 striking employees
discharged on September 21, 1950, be awarded back pay from such
date-subsequent to their discharge-on which they make, or have
made, an unconditional offer to return to work, to the date on which
the Respondent offers, or has offered, reinstatement to them. In ac-
cordance with our customary ruling, however, we agree with the Trial
Examiner that an unconditional request to return to work or some
° Robert Van Wagoner, in his testimony , placed this as March 7, 1950.
° See Wallick and Schwalm Company, 95 NLRB 1262.
COAL CREEK COAL COMPANY 17
other evidence that the strike has been abandoned is necessary to start
the accumulation of back pay to discharged strikers 7
Order
Upon the basis of the above findings of fact and the entire record
in the case, and pursuant to Section 10 (c) of the National Labor
Relations Act, as amended, the National Labor Relations Board hereby
orders that the Respondent, Coal Creek Coal Company, Wellington,
Utah, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Inde-
pendent Union of Coal Creek Coal Company, or with the formation
and administration of any other labor organization, or contributing
financial or other support to the Independent Union of Coal Creek
Coal Company or any other labor organization.
(b) Recognizing Independent Union of Coal Creek Coal Company,
or any successor thereto, as the representative of any of its employees
for the purpose of dealing with the Respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, and
other conditions of employment.
(c) Giving effect to any and all contracts, supplements thereto, or
modifications thereof with Independent Union of Coal Creek Coal
Company.
(d) Discouraging membership in any labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees
because of their union membership or activity, or in any other man-
ner discriminating in regard to their hire or tenure of employment, or
any term or condition of their employment.
(e) Promising benefit or threatening reprisal in order to influence
its employees' choice of a bargaining representative, or in any other
manner interfering with, restraining, jr coercing its employees in the
exercise of the right to self-organization, to form, join, or assist any
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a)' (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
i Happ Brothers Company, Inc., 90 NLRB 1513, 1518; Alside, Inc., 88 NLRB 460; Globe
Wireless, Ltd., 88 NLRB 1262, 1268.
18 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
(a) Withdraw and withhold all recognition from, and completely
disestablish, the Independent Union of Coal Creek Coal Company as
the representative of any of its employees for the purpose of dealing
with the Respondent concerning grievances, labor disputes, wages,,
rates of pay, hours of employment, or other conditions of employment.,
(b) Offer to Frank Blatnick, Bee Bly, Willard Hughes, Arnie
Adair, Rawlins Thacker, Alfred Powell, Robert Van Wagoner, John
Himmelberger, Maurice Forbush, Elmer LeMarr, and Floyd Gold-
ing, unless they have already been reinstated, immediate and full
reinstatement to their former or substantially equivalent positions.
and make them whole for any loss of wages suffered as a result of the
discrimination against them in the manner described in "The remedy"
section of the Intermediate Report.
(c) Post immediately in its mine and in its offices in Wellington,
Utah, copies of the notice attached hereto and marked "Appendix
A." Copies of said notice, to be furnished by the Regional Director
for the Twentieth Region, shall, after being duly signed by the Re-
spondent's representative, be posted by the Respondent immediately
upon receipt thereof and maintained by it for sixty (60) consecutive
days in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that the said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discriminatorily discharged Joe Grant-referred to
by the Trial Examiner as Joseph Grant-in violation of Section 8 (a)
(3) of the Act, be, and it hereby is, dismissed.
MEMBER REYNOLDS took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
COAL CREEK COAL COMPANY 19
WE HEREBY DISESTABLISH INDEPENDENT UNION OF COAL CREEK
COAL COMPANY as the representative of any of our employees for
the purpose of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment, and we will not recognize it or any suc-
cessor thereto for any of the above purposes.
WE WILL NOT dominate or interfere with the formation or ad-
ministration of any labor organization or contribute financial or
other support to it.
WE WILL NOT give effect to any and all agreements and con-
tracts, supplements thereto or modifications thereof, or any super-
seding contract with INDEPENDENT UNION OF COAL CREEK COAL.
COMPANY, or any successor thereto.
WE WILL NOT promise benefit or threaten reprisal in order to
influence our employees in their choice of bargaining representa-
tives, or in any other manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist any labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement, unless they have already been offered reinstate-
ment, to their former or substantially equivalent positions with-
out prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any less of pay
suffered as a result of the discrimination against them, in the
manner set forth in "The remedy" section of the Intermediate
Report :
Bee Bly Alfred Powell
Willard Hughes Robert Van Wagoner
Arnie Adair John Himmelberger
Rawlins Thacker Maurice Forbush
Elmer LeMarr Frank Blatnick
Floyd Golding
All our employees are free to become or remain members of
any labor organization except to the extent that this right may
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be affected by an agreement in conformity with Section 8 (a) (3)
of the amended Act. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment
against any employee - because of membership in or activity on
behalf of any labor organization.
COAL CREEK COAL COMPANY,
Employer.
By --------------------------------
(Representative ) ( Title)
Date --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On amended charges duly filed by and on behalf of Joseph Grant,' Frank Blat-
nick, Bee 131y, Willard Hughes, Arnie Adair,' Rawlins Thacker,' Alfred Powell,
Robert Van Wagoner,' John Himmelberger, Maurice Forbush,` Elmer Le Marr,'
and Floyd Golding, the General Counsel of the National Labor Relations Board,
herein respectively called the General Counsel and the Board, by the Regional
Director for the Twentieth Region (San Francisco, California), issued his com-
plaint on December 4, 1950, against Coal Creek Coal Company, Wellington,
Utah, 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 (a) (1), (2), and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint and the amended charges, together with notice of
hearing thereon, were duly served upon the Respondent and upon each of the
12 individual complainants. No notice of hearing was served upon the Inde-
pendent Union of the Coal Creek Coal Company, herein called the Independent,
the labor organization alleged in the complaint to be existing in violation of the
Act, and which is a party to a certain collective bargaining contract with the
Respondent, nor was the Independent made a party to the proceedings. Sub-
sequent to the close of the hearing, however, a stipulation, dated April 9, 1951,
was entered into by the General Counsel and by counsel for the Respondent,
for the Independent, and for Floyd Golding reading, in part, as follows :
1. That the Independent Union of the Coal Creek Coal ,Company, herein-
after called the Independent, had actual notice of the hearing conducted
in the above-entitled proceeding before Trial Examiner Howard Myers at
Provo, Utah, on January 16, 17, 18, 19 and 20, 1951, and that a representative
of said Independent was present in the hearing room while said hearing
was in session ; -
I Also referred to in the record as Joe Grant.
2 Also referred to in the record as Arnie Adair.
2 Also referred to in the record as Rollie Thacker.
' Also referred to in the record as Bob Van Wagoner.
Also referred to in the record as Morris Forbush,
Also referred to in the record as Elmer Le Mar.
COAL CREEK COAL COMPANY 21
2. That said Independent be made a party to the above-entitled proceed-
ing in the same manner and to same extent that it might have been had it
been served with the Notice of Hearing and other formal papers prior to
the hearing;
3. That service of such Notice of Hearing and other formal papers and
any rights which said Independent may have had to intervene or otherwise
participate, in any manner whatsoever, in said hearing are hereby ex-
pressly waived ;
4. That this Stipulation may be incorporated in and made a part of the
record in the above-entitled proceeding:`
With respect to the unfair labor practices, the complaint alleged, in sub-
stance, that the Respondent (1) discharged Floyd Golding on or about March
22, 1950, and thereafter refused to reinstate him, because of his membership
in, and concerted activities on behalf of, the United Mine Workers of America,
herein called UMW ; (2) on or about April 3, 1950, initiated, formed, sponsored,
and promoted the Independent and since that date has assisted, dominated,
supported, and interfered with its administration; (3) since on or about March
21, 1950, the Respondent (a) urged and requested its employees to vote for
the Independent in a certain Board-conducted election, (b) promised various
benefits to its employees if they would vote for the Independent in the said
election, and (c) executed and maintained with the Independent a collective
bargaining agreement containing, among other provisions, an illegal union-shop
clause; and (4) on certain stated dates discharged 11 named persons and there-
after has refused to reinstate them, or any of them, because they had engaged
in certain concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
On December 11, 1950, the Respondent duly filed an answer, admitting certain
factual allegations of the complaint with respect to its corporate structure and
operations, but denying the commission of the alleged unfair labor practices.
Pursuant to notice, a hearing was held on January 12, 1951, at Salt Lake City,
Utah, and from January 16 to January 20, 1951, inclusive, at Provo, Utah, before
the undersigned, Howard Myers, the duly designated Trial Examiner. The
General Counsel, the Respondent, and complainant Floyd Golding were repre-
sented by counsel. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues was afforded all
parties.
At the conclusion of the taking of the evidence, the General Counsel moved
to conform the pleadings to the proof with respect to minor variances, but not
to include any new unfair labor practices nor any new defenses. The motion
was granted without objection. Respondent's counsel then moved to dismiss
the complaint for lack of proof. The decision thereon was reserved. The motion
is hereby denied. The parties waived oral argument. The parties were then
advised that they might file briefs and proposed findings of fact and conclusions
of law with the undersigned on or before February 4, 1951. A brief has been
received from the Respondent's counsel which has been carefully considered by
the undersigned.
'Counsel for the Respondent appended to the above stipulation the following: "Coal
Creek Coal Company stipulates as to paragraph 2 and 4 of foregoing and neither denies or
affirms paragraphs 1 and 3."
986209-52-vol. 97-3
22 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
On the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Coal Creek Coal Company, a Utah corporation, has its principal place of
business at Wellington, Utah, and owns and operates a coal mine located some
14 miles therefrom. During the period from April 1, 1949, to April 1, 1950, the
Respondent purchased equipment and supplies aggregating approximately
$106,000 of which amount $56,000 were received from points located outside the
State of Utah. During 1949, the Respondent mined, sold, and shipped coal
valued at approximately $150,000, 95 percent of which was sold and shipped to
places located outside the State of Utah.
The Respondent concedes, and the undersigned finds, that during all times
material herein, it is engaged in commerce within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
United Mine .Workers of America, herein called UMW, and Independent Union
of the Coal Creek Coal Company are labor organizations admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
Domination of, Interference with, and Support of the Independent ;
Interference, Restraint, and Coercion 8
A. Formation and history of the Independent
For several months immediately prior to February 1950,9 various coal mines
in and around Carbon County, Utah, the situs of the Respondent's mine, had
certain difficulties with UMW, thereby forcing those mines to operate on a part-
time basis during that period. In the latter part of February, the UMW
placed a picket line around or near the mine located almost adjacent to the
Respondent's. The picket line was so placed that the Respondent's employees
were obliged to cross it going to and leaving work.
The Respondent's employees crossed the picket lines for several days and
continued to work. When it became evident that the pickets resented the
refusal of the Respondent's employees to honor the picket line and the activities
of the pickets became "too rough," the Respondent closed its mine.
The evening that the mine closed, Grant Powell, the husband of its principal
stockholder and the actual operating head of the Respondent, assembled all
the employees and, according to the credited and uncontradicted testimony of
employee John Himmelberger, told the employees the contractual demands
which the UMW made upon the Respondent were such that the Respondent
8 The undersigned makes no finding of unfair labor practices antedating by more than
6 months the filing of the first charge herein by Maurice D. Forbush on September 27,
1950 , alleging , among other things, a violation of Section 8 (a) (2) of the Act . The under-
signed, however , regards the events antedating the aforesaid 6 months' period as back-
ground which throws light on, and imparts meaning to , the events which occurred thereafter.
See Florida Telephone Corporation, 88 NLRB 1429 ; Sun Oil Company, 89,NLRB 833; and
N. L. R. B v. Luzerne Hide & Tallow Company, 188 F. 2d 439 (C A. 3),
9 Unless otherwise noted, all dates referred to herein occurred in 1950.
COAL CREEK COAL COMPANY 23
,could not work thereunder ; that he had his lawyer draft an agreement
whereby the employees could purchase stock in the Respondent's mine; that
if a sufficient number of employees subscribed to the agreement, the mine would
-reopen; that by virtue of their stock interest in the Respondent's mine, the
employees would be able to work the mine free of any interference by UMW ;
that each employee signing the stock purchasing agreement would have to
make an initial payment of 10 dollars and thereafter make periodic payments
until the stock to which he subscribed was fully paid. Himmelberger further
testified credibly that most of the employees signed the agreement that evening.
Himmelberger further testified credibly and without contradiction that several
days after the above-mentioned meeting, Powell told him the employees of the
Knight Ideal Coal Company (whose mine is near that of the Respondent) had
formed an independent union and the Respondent would like to have such an
organization in its establishment ; that Powell then requested him to discuss the
matter with his coworkers and to advise Powell about their thoughts with
respect thereto ; and that he did as requested.
On March 6, the Industrial Commission of the State of Utah 10 conducted a
secret ballot election among the Respondent's employees for the purpose of
ascertaining whether or not the employees wanted to be represented by the
UMW. Just prior to the balloting, which took place in the Respondent's
offices, Powell assembled the employees, told them that they had the right to
vote the way they desired but if the UMW won the election, the Respondent
could not operate the mine under the terms demanded by that organization ;
and again referred to the aforesaid stock purchase agreement, suggesting that
those who had not already done so should sign it.
At the conclusion of the balloting, the representative of the Commission con-
ducting the election announced that 25 votes were cast for UMW and 17 against.
Powell and a representative of UMW then conferred privately for about an
hour. At the conclusion thereof and after the UMW representative had left,
Powell, in the presence of about 35 employees, took the stock purchase agree-
ment from his files and then stated that those who had signed that agreement
and who had voted for the UMW should strike their names from the agreement
and that their subscription money would be refunded. Thereupon some em-
ployees, including Floyd Golding, his brother, Lavelle, Carl Olson, and Jim
Wynn struck their names from the agreement.
About a week after the aforesaid meeting, Powell assembled some 20 or 25
employees and spoke to them about the union at the Knight Ideal Coal Company
and about the benefits, including the welfare plan and the royalties that organi-
zation was able to secure for its members. Powell then stated that the em-
ployees should discuss the matter among themselves and perhaps they might
agree to form such an organization, adding that he would rather give his em-
ployees the royalties than give them to the UMW.
About the same time, Powell held another meeting with about 15 other em-
ployees wherein, according to the undenied and credible testimony of employee
Robert Van Wagoner, Powell stated that if the employees formed an independent
union they "could really go places" and work while the members of the UMW
were on strike.
On April 3, pursuant to arrangements made by Superintendent P. M. Camp-
bell, Himmelberger, Van Wagoner, and about 10 other employees met with
"Also referred to in the record as the Utah State Labor Relations Board and as Utah
State Labor Board.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Campbell at Campbell's home. The meeting was also attended by Powell, Fore-
man Eldon Van Wagoner,' Foreman Jay Houston, and Gale Farmer , the then
president of Knight Ideal Coal Company's union.
The meeting was opened with a discussion , alternately by Powell and Camp-,
bell, regarding the formation of an independent union at the Respondent's mine.
Then Campbell introduced Farmer, who outlined the contract which his union
had with his employer, and which contained provisions for the establishment
of a welfare plan. After finishing his explanation of the contract, and the
discussion that ensued with respect thereto, Farmer left the meeting.
Campbell then inquired whether the employees wanted to form an organiza-
tion similar to the one at Knight Ideal Coal Company. After the employees
indicated their approval, Powell stated that he would agree to pay into the
treasury of such an organization 25 cents royalty for each ton of coal mined,
and henceforth would put Campbell in complete charge of the mine's operation
and would confine his own activities to purchases and sales . Thereupon, Camp-
bell suggested that the employees proceed with the formation of the Independ-
ent by the selection of officers. This the employees did after Campbell and
Powell had stepped into an adjoining room"
After the officers had been selected, Campbell and Powell returned to the meet-
ing. Campbell then stated that he would immediately communicate with Allan
E. Mecham, a Salt Lake City attorney, and have Mecham attend to the legal
matters for the new association. The meeting then adjourned and Campbell,
accompanied by Himmelberger and two or three other employees, telephoned
to Mecham and arranged with Mecham to confer with the newly selected offi-
cers in Mecham's office on April 8. Campbell then told Himmelberger that he
would send a "company man" with the officers when they met with Mecham and
that the Respondent would pay the persons who went to Salt Lake City to see
Mecham, their regular day's pay.
Three elected officers and Houston, the "company man," conferred with
Mecham at Mecham's office on April 8, pursuant to Campbell's arrangements
with Mecham. There, the president of the new organization, Dwain Harper,
told Mecham that they desired to form an independent union. Mecham agreed
to attend to all the details with respect to the formation of the Union and to
the preparation of the necessary affidavits and statements required by Section
9 (f), (g), and (h) of the Act. Mecham was then told by Houston that he was
there for the purpose of assuring Mecham that the Respondent would reimburse
Mecham for whatever expenses he incurred and that it would also pay Mecham's
fees. Mecham then stated that he wanted a $1,000 retainer fee. Whereupon
Houston said that he would immediately contact Powell and Campbell and see
that they sent Mecham the requested sum.
In due course, Mecham incorporated the Independent, prepared, had executed,
and filed the necessary affidavits and statements required by the Act, and then
filed a representation petition.
Under date of May 10,, the Respondent and the Independent executed a consent
election agreement which the Regional Director for the Twentieth Region sub-
sequently approved. The election was held on June 19. Of the 23 ballots cast,
21 were cast for the Independent and 2 were challenged. Under date of June
27, the said Regional Director certified the Independent as the collective bar-
gaining representative of the Respondent 's' employees in the appropriate unit.
n The father of Robert Van Wagoner.
As far as the record shows, Foreman Van Wagoner and Houston remained in the meet-
ing during the selection of officers.
COAL CREEK COAL COMPANY 25
Employee Arnie Adair testified credibly that on the day prior to the aforesaid
election, Campbell " told him that the vote must be unanimous in favor of the
Independent ; otherwise, "UMWA (sic) will have a chance at us."
Robert Van Wagoner credibly testified that 2 days prior to the Board elec-
tion, Campbell told him that if the Independent received a unanimous vote at
the election the employees would be given a chicken dinner; that on the night
before the said election Campbell requested a group of the employees to remain
at the mine overnight ; that when he queried Campbell as to the reason for this
unusual procedure, Campbell replied word had been received by the Respondent
that UMW adherents would attempt to prevent the employees from voting; that
some employees, including himself, remained at the mine that night ; and that
the following day Campbell brought them breakfast and then stated, "Remember,
we want a hundred per cent" vote for the Independent.
Himmelberger credibly testified that on the day before the election, Campbell
said to him and employee Emmett Farnsworth, to quote Himmelberger :
This election has got to go a hundred per cent. If it don't go a hundred
per cent, we'll know that we've got some rats in the crowd. It's just got to
go one hundred per cent or none of us will be able to work. If it don't go a
hundred per cent, the UMWA (sic) will take over and they will have the
run of the mine and none of us will have a job.
Adair also testified that a few days prior to the Board election, Powell said to
him and to some other employees, "Boys, we got to win this election ; get the
Independent in ; . . . Boys, if we win it, we'll give you a big chicken dinner, all
the beer and whiskey you [can] drink."
Powell denied that he advised any employee how to vote in the election and
further denied promising any employee a chicken dinner, beer, or whiskey if he
voted in favor of the Independent. Adair was an honest and forthright witness
and his demeanor while on the witness stand favorably impressed the under-
signed. On the other hand, Powell did not so impress the undersigned. The
undersigned therefore finds that Powell made the above-quoted statement at-
tributed to him by Adair.
After numerous meetings between the officers of the Independent and Powell
and other managerial officials of the Respondent and after numerous meetings
of the membership of the Independent, the Respondent and the Union executed
a collective bargaining agreement dated July 29, 1950, containing the following
clause:
. . . It is expressly understood and agreed that as a condition of employment,
all production employees hired by the Company must within thirty (30)
days after date of hire tender his or their dues and initiation fees to the
Union or become a member of the Union within the said thirty (30) day
period... .
That the Independent was formed by the Respondent" in violation of the Act
is too clear for discussion. In fact, the Respondent's counsel does not seriously
challenge the allegations of the complaint that the Independent is existing in
violation of the Act, -for in his brief he states :
13 Campbell did not testify.
14 The record is clear and the undersigned finds that the Independent came into being
at the meeting held at Campbell 's home on April 3. , The first charge filed herein, alleging
that the Respondent violated Section 8 (a) (2) of the Act through Its illegal connection
with the Independent , was filed by Forbush on September 27. Hence a finding with
respect to the formation of the Independent may properly be made for it occurred within
6 months of the filing of the charge.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unquestionably there were some meetings held and procedures followed
which would not have been followed had either the Respondent corporation
or the members of the Independent Union had wider experience of such
matters. The errors committed and indiscretions practiced were not due to
any intent to coerce or dominate the situation, but were the offspring of
employee-employer relations.
Furthermore, the credible evidence, as epitomized above, leads to the ines-
capable conclusion that the Independent existed and functioned only through
the Respondent's control, participation, financial support, and sufferance 16 In
short, the Independent was used by the Respondent as a substitute for collective
bargaining and, as such, is a device which has been repeatedly and consistently
held by the Board and the courts to be an outlawed form of labor organization 16
The undersigned is also of the opinion, and finds, that by advancing the In-
dependent $1,000 to defray Mecham's fees and disbursements and by incorpora-
tion in the contract with the Independent the union-shop clause, when admittedly
no security authorization election had been held by the Board and none requested,
the Respondent lent further financial and other support to the Independent.
Upon the entire record in the case, the undersigned finds that the Respondent
formed, dominated, and interfered with the administration of the Independent
within the meaning of Section 8 (a) (2) and (1) of the Act, thereby interfering
with, restraining, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 thereof.
It is further found that by Campbell's and Powell's promises of benefits to
Adair, Van Wagoner, and other employees, in the event of an Independent victory
at the polls ; Powell's threat that the Respondent could not operate its mine under
conditions imposed by the UMW ; Campbell's statements to Himmelberger and
Farnsworth on the day preceding the election, that if the vote was not 100
percent for the Independent "none of us will be able to work," and "we'll know
that we've got some rats in the crowd" ; and Powell's requirement that those who
voted for the UMW in the election of March 6 have their names struck from the
stock purchase agreement which the Respondent had offered to combat the
UMW, the Respondent violated Section 8 (a) (1) of the Act.
B. The discharge of Floyd Golding
Golding was first employed, by the Respondent on November 14, 1949, as a
truck loader. At the time of his discharge on March 23, 1950, he was em-
ployed as a coal car dumper.
Golding testified credibly, and without contradiction, that on February 8 he
was approached by a representative of the UMW, in the presence of Foremen
Eldon Van Wagoner and John Nichols and some five nonsupervisory employees,
and requested by the said representatives to attend a UMW meeting the following
evening; that he attended the meeting and Joined UMW thereat; that throughout
The record discloses, and the undersigned finds, that ( 1) several Independent mem-
bership meetings were held on company time and property with Campbell 's and other
supervisors ' knowledge ; ( 2) Powell showed strenuous objections to employee Magnum's
being a member of the Independent ; and (3 ) Campbell's efforts were successful in keeping
employee Garcia out of the Independent for a period of time.
16 See Newport News Shipbuilding & Drydock Co ., 308 U. S. 241; N. L. R. B. v . Baldwin
Locomotive Works, 128 F. 2d 39 ( C. A. 3) ; Bethlehem Steel Co. v. N . L. R. B., 120 F. 2d
641 (App. D. C.) ; Westinghouse Electric & Mfg. Co. v. N. L. R. B., 112 F. 2d 657 (C. A.
2) ; Budd Manufacturing Co. v. N . L. R. B., 138 F . 2d 86 ( C. A. 3) ; and N. L. R. B. v.
Rath Packing Co., 123 F. 2d 684 ( C. A. 8).
COAL CREEK COAL COMPANY 27
the balance of February, on company time, he openly solicited members for the
UMW from among his coworkers ; that sometime in February or March, he told
Foreman Ben Anderson he was endeavoring to bring the UMW into the mine in
order to stabilize the wages of the Respondent's employees ; that from the latter
part of February until March 6, the mine was closed due to the activities of the
UMW pickets ; that on March 5, Foreman Van Wagoner called at his home and
informed him that the mine would reopen the following day and that he should
report,to work; that upon reaching the Respondent's offices on March 6, Powell
told the employees that the pickets were at their usual places, and that Powell
then took some employees through the picket line in an automobile.
Golding further testified, and the undersigned finds, that after Powell had
left he and some other employees got into the Respondent's station wagon,
which was driven by Foreman Van Wagoner, and proceeded toward the mine; 17
that when they reached the picket line he informed Van Wagoner that he did
not desire to cross it because he was a UMW member ; that his brother, Lavelle,
and Carl Olson also told Van Wagoner that they did not care to cross the picket
line; that thereupon Van Wagoner turned around and drove to the place whence
he started ; that shortly thereafter Powell returned from the mine and inquired
why the men in the station wagon did not cross the picket line; that Van
Wagoner informed Powell that certain men did not want to cross it ; that
Powell then said that the men should get into the station wagon and he (Powell)
would drive them through the line; that all the men who were previously in
the station wagon got into it except himself, his brother, and Olson ; and that
Powell then drove the station wagon through the picket line.18
Regarding the events that transpired on March 7, Golding testified without
contradiction, and the undersigned credits his testimony, that he presented to
the bookkeeper for "recomputation" the pay check he had received a day or
two previously so that the bookkeeper could include in a new check the amount
of money he had paid toward the purchase of stock pursuant to the aforesaid
stock purchase agreement ; and that he then inquired of Powell if he was dis-
charged, to which inquiry Powell replied in the negative.
On March 8, Golding reported for work at the usual hour. Regarding the
events that then transpired Golding testified, and the undersigned finds, that
he inquired of Powell, who was standing near the station wagon as the em-
ployees were boarding it preparatory to going to the 'mine, whether there was
room therein for him ; that Powell replied, to quote Golding, " No sir ; you
wouldn't go through that picket line when I wanted you to the other day, so
I got somebody in your place" ; and that he then left the Respondent' s premises.30
On March 13, pursuant to Foreman Van Wagoner's request, Golding reported
for work. He worked continuously until March 22. For the first 3 or 4 days of
this period he was assigned to loading cars on trucks and then was assigned
to his usual job of dumping coal cars.
17 The station wagon normally was used to take the employees to and from the mine.
The employees boarded at the office , which is some 14 miles from the mine. The station
wagon was also used to pick up certain employees at their homes and bring them to the
office before transporting the employees to the mine.
18 Foreman Van Wagoner 's testimony with respect to the foregoing events is in sub-
stantial accord with Golding 's version thereof.
19 The above-described discharge or layoff was not specifically alleged in the complaint as
constituting an unfair labor practice . Moreover , it antedated by more than 6 months the
charge filed by Golding on September 19, 1950. Accordingly , the undersigned does not
find that,the above discharge or layoff constituted unfair labor practices as such, but does
find that it is indicative of the Respondent 's actions with respect to Golding's subsequent
discharge.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At a UMW meeting held on the night of March 22, Golding was elected
recording secretary. The nest day he publicized that fact among his coworkers.
On March 23, the station wagon which usually picked up Golding and his
brother at Golding's home did not do so. After waiting about an hour, Golding
and his brother went to the Respondent's offices to ascertain why the station
wagon did not pick them up. After waiting there for about 30 minutes and
not being able to find out why the station wagon did not stop for them that
morning, Golding and his brother proceeded to the ranch where the latter was
then living. About noon that day, Powell telephoned the ranch and requested
the two Golding brothers to report to Powell's office.
Golding testified that when he and his brother arrived at the office, they
asked Powell why the station wagon did not pick them up that morning; that
Powell replied that because of the reduction in force, Powell had to let Golding
and his brother go because they had less seniority than those retained ; that
during the discussion which ensued Golding's brother conceded that the em-
ployees retained had more seniority than he ; that Powell then conceded Golding
had more seniority than the persons retained ; that Powell then indicated that
he would look into the matter and "see what we can figure out on that" ; and
that Powell then assigned Golding and his brother to helping the carpenter erect
some company-owned houses. Golding and his brother worked on this con-
struction job for the balance of that day and were then laid off.
Powell testified that Golding was, laid off on March 23, in- the reduction of
force that took place about that time due to cancellation of orders ; that Ray
Bentley, a shuttle car operator, replaced Golding as car dumper ; that Bentley
was retained because of the scarcity of trained shuttle car operators like Bentley ;
that Golding, being a common laborer, could be replaced very easily ; that be-
cause of certain mechanical changes made in the latter part of March in the
method of handling coal from the mine, the Respondent was able to dispense
with car dumpers, such as Golding ; and that the Respondent had no "agreement
with the miners that a rule of seniority would apply" when laying off employees.
Golding was an honest, and forthright witness. As found above, Powell was
not. Accordingly, and upon the entire record in, the case, the undersigned
finds Golding's version of what transpired on March 23 to be substantially in
accord with the facts. Moreover, the only evidence of cancellation of orders
which Powell contended caused the reduction in force in March was Powell's
uncorroborated testimony. No other evidence, although easily attainable, was
introduced to substantiate this contention.
The record is manifestly clear, and the undersigned finds, that Powell, despite
his denials, had knowledge of Golding's membership and activities in behalf
of the UMW prior to Golding's layoff on March 23. Powell's antipathy for
the UMW is likewise clear. This latter finding is not only supported by the
numerous anti-UMW statements attributed to Powell by several credible wit-
nesses,20 but is buttressed by the fact that Powell aided in the formation and
in the domination of the Independent and used it to forestall and frustrate all
organizational activities of the UMW within the Respondent's establishment.
Upon the entire record in the case, the undersigned is convinced, and finds,
that Floyd Golding was discharged on March 23, and was thereafter refused
reinstatement, because of his membership and activities in behalf of the UMW.
20 Furthermore , Robert Van Wagoner testified credibly , and without contradiction, that
during a conversation with Powell on March 13 , relative to the formation of an inde-
pendent union , Powell stated that he had discharged Ernie Davis because Davis was a mem-
ber of UMW.
COAL CREEK COAL COMPANY 29
By such discharge and refusal to reinstate, the Respondent violated Section
8 (a) (3) and (1) of the Act2
At the hearing and in his brief the Respondent's counsel contended that the
complaint as to Floyd Golding should be dismissed because Golding is "merely
a front for United Mine Workers of America in this proceeding." The record
does not support this contention and hence it is without merit?2
C. The September 21 discharges
While working on the night shift on September 19, Campbell discharged
Robert Garcia and Robert Williams, who also were working on that shift,
for reasons not discosed by the record.
On September 20 Powell was informed of Campbell's action. That evening
he went to the mine to ascertain the reason for the discharges. There, Campbell
and Powell engaged in a heated argument which culminated in the discharge
of Campbell and Joseph Grant 23 As soon as the discharges of Campbell and
Grant took place, the balance of the night-shift employees ceased work and
walked off the job.
The following morning the station wagon failed to call at the homes of the
employees who were normally picked up and brought to work. This was due
to the fact that the driver thereof refused to work until Campbell and Grant
were reinstated2' Many of the workers on the day shift also refused to work
for the same reason.
Later that day, September 20, about 15 striking employees, all Independent
members, met and discussed the discharges of Campbell and Grant and the
Respondent's refusal to reinstate them. During the course of the discussion,
the employees decided to dissolve the Independent. In furtherance of that
intention, a petition was prepared bearing the following legend :
To the Management of the Coal Creek Coal Company and Others:
This is to certify that we of this date have dissolved the independent
union of which we were members of and take this means of notifying
you of our action.
After the aforesaid document had been signed by each of the 15 persons
attending the meeting, it was given to Grant for delivery to Powell. Grant
met Powell outside the Respondent's offices and tendered the petition to Powell.
The latter, according to the former's credited testimony, cursed Grant and
refused to accept the proffered petition. Thereupon Grant dropped it near
Powell and departed.
21 Golding' s uncontradicted testimony , which the undersigned credits, reveals that on
numerous occasions he asked Campbell for reemployment and that Campbell failed to reem-
ploy 111m. Golding further testified without contradiction, and the undersigned finds,
that on one occasion he asked Foreman Van Wagoner for reemployment and that the latter
stated he should discuss the matter with Campbell.
re See N. L. R. B. v. Luzerne Hide d• Tallow Company, 188 F. 2d 439 (C. A. 3).
23 Grant had been helping Campbell with a drill when Powell arrived at the mine. Ac-
cording to Grant' s testimony , after Powell had discharged Campbell, Powell turned to him
and said, "Well , Grant, you just might as well go with" Campbell . Powell testified that
he did not discharge Grant but that Grant quit because Campbell had been discharged. It
would serve no useful purpose to resolve the conflict in the testimony of Grant and Powell
as to whether the former quit or was discharged , for the undersigned is convinced, and
finds, that Grant's severance of employment was not violative of the Act.
24 The General Counsel contended that the employees walked off the job because of the
discharges of Williams and Grant . The record is manifestly clear, and the undersigned
finds, that the walkout was occasioned by the discharges of Campbell and Grant.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grant returned to the employees' meeting and reported Powell's actions.
The employees then decided to meet again the following afternoon. At this
meeting, again attended by practically the same persons who attended the
previous meeting, it was decided they would en masse see and discuss the
matter with Powell.
Upon arriving at Powell's office , Frank Blatnick, a complainant herein and
one of the employees' spokesmen, stated to Powell that the men would return
to work provided Campbell and Grant were reinstated. Powell replied, according
to Himmelberger's credible testimony, "All you guys that signed this here
petition, I am done with you. I want no more to do with you. You can pick
up your checks in half an hour." When Forbush inquired.of Powell why he
assumed that position, Powell replied, to quote Himmelberger's credited testimony,
"Because you guys have signed this document, you are not fair to me, you are
not doing your duty to me, you are leaving me hanging in mid-air." After
that remark the employees left Powell's office.
As found above, Grant's discharge was not violative of the Act. The same
is true as to Campbell's discharge. The Respondent, however, violated Section
8 (a) (3) and (1) of the Act when, on September 21, it discharged complainants
Blatnick, Bly, Hughes, Adair, Thacker, Albert Powell, Robert Van Wagoner,
Himmelburger, Forbush, and LeMarr because they struck in protest of the
discharges of Campbell and Grant and because they signed and presented the
petition to dissolve the Independent.
Admittedly, the strike was in protest against certain lawful discharges and
hence it was an economic strike, and the Respondent was free to replace such
strikers at any time prior to their unconditional request for reinstatement.
However, it does not follow from this that the Respondent was free to discharge
the strikers before they were replaced. In fact, when the strikers requested
reinstatement on September 21, even though the request was conditional, they
were discharged and told that their final pay checks would be ready within
a half hour. Concededly, the discharges became effective prior to the strikers
being replaced. Under the circumstances, the discharges were violative of the
Act and the undersigned so finds.
Since it has been found that the discharge of Joseph Grant was not violative
of the Act, the undersigned will recommend that the complaint as to him be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with Respondent's operations described in Section I, above, have a
close, intimate, and substantial. relationship to trade, traffic, and commerce
among the several States, and such of them as have been -found to constitute
unfair labor practices, 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 unfair labor practices in
violation of Section 8 (a) (1), (2), and (3) of the Act, the undersigned will rec-
ommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
25 Regarding the meeting , Powell testified , and the undersigned finds, that the employees
demanded the reinstatement of Campbell and Grant before they would return to work.
COAL CREEK COAL COMPANY 31
As found above, the Respondent formed, dominated, and interfered with the
administration of the Independent and contributed support to it. The under-
signed is convinced, and finds, that the present existence of the Independent and
the Respondent's continued recognition thereof constitute a continuing obstacle
to the exercise by the employees of the rights guaranteed them under the Act.
Therefore, in order to effectuate the policies of the Act and to free the employees
from the effects of the Respondent's unfair labor practices, the undersigned will
recommend that the Respondent withdraw all recognition from the Independent
as a representative of any of the Respondent's employees for the purpose of
dealing with the Respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment, and conditions of employment and to completely
disestablish it as such representative.
As previously found, the Respondent's conduct in executing the contract, dated
July 29, 1950, with the Independent constituted unlawful assistance to the Inde-
pendent. This contract has been a means whereby the Respondent has utilized
the unlawfully formed, dominated, and supported Independent to frustrate self-
organization and to defeat genuine collective bargaining by the employees. The
undersigned, therefore, recommends that the Respondent cease and desist from
giving effect to said contract or to any renewal, extension, modification, or sup-
plement thereto. Nothing herein shall be taken to require the Respondent to
vary the wages, hours, seniority, and other substantive features of its relations
with the employees themselves, which the Respondent has established in per-
formance of the said contract or any revision, extension, renewal, or modification
thereof.
Having found that the Respondent discharged Frank Blatnick, Bee Bly, Wil-
lard Hughes, Arnie Adair, Rawlins Thacker, Alfred Powell, Robert Van Wag-
oner, John Himmelberger, Maurice Forbush, and Elmer LeMarr, and refused the
said individuals reinstatement,28 it will be recommended that the Respondent
offer the aforesaid 11 individuals, excepting those already rehired, immediate and
full reinstatement to their former or substantially equivalent positions'21 without
prejudice to their seniority or other rights and privileges.
It is the Board's normal practice to award employees who are discriminatorily
discharged while on Strike back pay from the date when they unconditionally
request reinstatement rather than from the date of their discriminatory dis-
charges, but in the instant case it appears that on September 21, 1950, the dis-
chargees found to have been discriminated against, except Golding, requested
reinstatement. That request, however, was for reinstatement of all the strikers
together with the reinstatement of Campbell and Grant. The Respondent refused
to reinstate Campbell and Grant and regarded the request as conditional. The
undersigned, under the circumstances, finds that no unconditional request for
reinstatement has been made. As the record does not disclose the date when
the strike was abandoned, the undersigned will recommend that back pay be
awarded to Blatnick, Bly, Hughes, Adair, Thacker, Alfred Nowell, Robert Van
Wagoner, Himmelberger, Forbush, and LeMarr from the date on which they
21 At the conclusion of the second day's ( January 16 , 1951 ) hearing herein, the Respond-
ent's counsel stated on the record that the Respondent offers unconditional reinstatement
to their former or substantially equivalent positions to Prank Blatnick , Arnie Adair,
Rawlins Thacker, Alfred Powell, Robert Van Wagoner, and John Himmelberger. The
undersigned thereupon advised Respondent 's counsel that he should make the offer
of reinstatement to the aforesaid employees directly, for the reasons stated by the under-
signed on the record.
'm See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch.
65 NLRB 827.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make, or have made, an unconditional offer to return to work, to the date on
which the Respondent offers, or has offered, reinstatement to them, and each of
them, in the manner set forth above.
Having found that the Respondent has discriminated in regard to the hire
and tenure of employment and the terms and conditions of employment of Floyd
Golding, the undersigned will recommend that the Respondent offer to Golding
immediate and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other rights and privileges. The
undersigned will also recommend that the Respondent make Golding whole for
any loss of pay he may have suffered by the reason of the Respondent's discrimi-
nation against him, by payment to him of a sum of money equal to the amount
he would normally have earned as wages, less his net earnings during that
period."
Back pay shall be paid in accordance with-the formula enunciated by the Board
in F. W. Woolworth, 90 NLRB 289.
The unfair labor practices found to have been engaged in by the Respondent
are of such a character and scope that in order to insure the employees here
involved their full rights guaranteed them by the Act it will be recommended
that the Respondent cease and desist from in any manner interfering with,
restraining, and coercing its employees in their right to self-organization.
It will be recommended further that the allegations of the complaint that the
Respondent discriminatorily discharged Joseph Grant be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America and Independent Union of Coal Creek
Coal Company are labor organizations within the meaning of Section 2 (5)
of the Act.
2. By forming, dominating, and interfering with the administration of In-
dependent Union of the Coal Creek Coal Company and by contributing support
to it, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Floyd
Golding, thereby discouraging membership in the United Mine Workers of Amer-
ica, the Respondent has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. By discriminating in regard to the hire and tenure of Frank Blatnick, Bee
Bly, Willard Hughes, Arnie Adair, Rawlins Thacker, Alfred Powell, Robert
Van Wagoner, John Himmelberger, Maurice Forbush, and Elmer LeMarr, the
Respondent has engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed by Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(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. By discharging Joseph Grant, the Respondent did not violate the Act.
[Recommended Order omitted from publication in this volume.]
28 See Crossett Lumber Co., 8 NLRB 440.
29 See May Department Stores, etc., 326 U. S. 376.