Consolidation Coal Co.

National Labor Relations Board - Board Decisions

Aug 7, 1945

63 N.L.R.B. 169 (N.L.R.B. 1945)

In the Matter of CONSOLIDATION COAL COMPANY and UNITED CON-
STRUCTION WORKERS, AFFILIATED WITH UNITED MINE WORKERS OF-
AMERICA
In the Matter of CONSOLIDATION COAL COMPANY and UNITED CON-
STRUCTION WORKERS, AFFILIATED WITH UNITED MINE WORKERS OF
AMERICA
Cases Nos. 9-R-1754 and 9-R-1764, respectively.Decided August 7,.
1945
Mr. Allen Prewitt, of Frankfort, Ky., Mr. J. M. Weekly, of Fair-
mont, W. Va., and Messrs. M. M. Forrester, Paul Ashcraft, and Carl.
Fitzpatrick, of Jenkins, Ky., for the Company.
Mr. Thomas Davis, of Norton, Va., and Mr. J. B. Boggs, of Jenkins,.
Ky., for the Union.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petitions duly filed by United Construction Workers, affili-
ated with United Mine Workers of America, herein called the Union,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Consolidation Coal Company, Jenkins,
and Van Lear, Kentucky, herein called the Company, the National
Labor Relations Board provided for an appropriate consolidated
hearing upon due notice before Benjamin E. Cook, Trial Examiner.
Said hearing was held at Whitesburg, Kentucky, on June 27, 1945.
The Company and the Union appeared and participated. All parties
were afforded full opportunity to be heard, to examine and crdss-
examine witnesses, to introduce evidence bearing on the issues, and to
file briefs with the Board. The Trial Examiner's rulings made at the,
hearing are free from prejudicial error and are hereby affirmed. The
Company's request for leave to present oral argument is hereby denied.-
63 N. L . R. B., No. 24.
169
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Consolidation Coal Company, a Delaware corporation with its
principal place of business in Jenkins, Kentucky, is engaged in the
operation of coal mines, located principally in the State of Kentucky,
and also operates, along with its mining operations and primarily
for the convenience of its mining employees, general merchandise
stores and numerous facilities and recreational centers, the employees
of which are alone concerned in the present proceedings. In oper-
ating its mines, the Company normally employs approximately 2,700
employees and in operating its stores and other facilities mainly
located within the townships of Jenkins and Van Lear, Kentucky,
employs between 210 and 245 employees. During the year 1944, the
Company produced and sold from its Kentucky mines, in excess of
3,000.000 tons of coal valued at approximately $9,000,000, of which
approximately 98 percent was shipped to points outside the State of
Kentucky. During the same period, the Company distributed locally
to the various facilities maintained for the benefit of its employees,
merchandise valued at approximately $1,800,000, of which approxi-
mately 86 percent was obtained from sources outside the State of
Kentucky.
The Company concedes that it is engaged in commerce within the
meaning of the National Labor. Relations Act, so far as it is engaged
in the production and sale of coal. The Company contends that it is
not engaged in commerce within the meaning of the Act with respect
to the operation of its stores and recreational activities, urging that,
while originally the mines were in isolated locations and the express
purpose of such establishments was to provide facilities for miners
and thus offer an inducement for their employment with the Com-
pany, the growth of mining locations with settled communities and
the improvement of roads and means of transportation have altered
the relation between its mines and its other activities; that the mining
employees are no longer dependent upon the Company's facilities
and that the present purpose of the latter's operation is the profit
obtainable from them as separate business enterprises.
While it appears that, as a result of the natural growth of the
communities herein concerned, a number of *stores and other facilities
similar to those maintained by the Company have arisen to offer their
services in competition with, those furnished by the Company, the
record discloses that a large percentage of the inhabitants of both
communities concerned are employees of the Company or dependent
in some degree upon the Company's mining and other operations; that
CONSOLIDATION COAL COMPANY 171
such employees have at present a substantial interest in the mer-
chandising operations of the Company, through the Company's prac-
tice of issuing upon request of its mining employees and in anticipation
of wages to be earned by such employees, advances of credit in the'
form of script which may be redeemed in merchandise at the Com-
pany's retail stores., Moreover, in the case of the Company's recrea-
tional actiinities, the record clearly indicates that the mining em-
ployees have an interest in patronizing the Company's establishments
in preference to those of competing business enterprises as shown by
the fact that in numerous instances the employees in the facilities.
operated by the Company are members of the families of its mining
employees.
We find, contrary to the contention of the Company, that the Com-
pany's store and recreational facilities are a part ' of its integrated
business enterprise and that in the operation of such facilities, the
Company is engaged in commerce within the meaning of the Act.2
II. THE ORGANIZATION INVOLVED
United Construction Workers, affiliated with United Mine Workers
of America, is a labor organization admitting to membership em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company stated at the hearing that it declined to recognize the.
Union as bargaining representative for any of its employees unless and
until certified by the Board.
The Company contends that by virtue of the fact that a contract
between United Mine Workers and an employer association, herein
called the Association,' of which the Company is a member, expressly
excludes from the coverage thereof the employees' herein concerned,
there arises in effect an agreement not to organize or represent the
employees involved in the present proceeding and that this agreement
is binding not only upon United Mine Workers, but also upon the
Union by reason of its affiliation therewith. We infer no such com-
mitment. We are of the opinion that the mere exclusion of such em-
ployees without other reference thereto in the contract between the
Association and United Mine Workers cannot reasonably be construed
as an agreement not to organize or represent these employees in an
' The Company 's reliance upon patronage by its employees as the basis of its store opera-
tions is indicated by the fact that it did not do any newspaper advertising of its merchan-
dise during the year 1044.
2 See Matter of Lillybrook Coal Company , 60 N. L R. B. 31 ; Matter of Pocahontas-
Fuel Company , Incorporated, 60 N. L . R. B. 41 ; Matter of West Virginia Coal & Coke Cor-
poration, Junior Mercantile Stores Division , 58 N. L R B 4
3 The Association , known as Big Sandy-Elkorn Coal Operators ' Association , did not appear
or participate in the hearing.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit apart from the Company's mining employees.4
Under the circumstances, we find that the contract between the Asso-
ciation and United Mine Workers as extended by a recent agreement
between United Mine Workers and an Operators' Negotiating Com-
mittee, is no bar to a determination of representatives for the store
.and recreational division employees of the Company.
- The statement of a Field Examiner for the Board, introduced in
evidence at the hearing, indicates that the Union represents a sub-
stantial number of employees of the Company in the claimed appro-
priate units.5
We find that a question -affecting commerce has arisen concerning
the representation of the employees of the Company, within the mean-
ing of Section 9 (c) and Section, 2 (6) and (7), of the Act.
IV. THE APPROPRIATE UNIT
The Union originally urged 2 separate units of the Company's store
.and recreational division employees,6 excluding supervisory and office
employees, in the Jenkins and Van Lear areas, respectively, but later
:stated at the hearing that it was agreeable to a single unit comprising
employees from both the Jenkins and the Van Lear areas. The Com-
pany proposes the creation of approximately 13 separate units of its
.store and recreational establishments or particular groups thereof
within the confines of the division aforesaid.7 In addition thereto,
the Company would exclude from any unit found appropriate certain
classifications of employees whom it contends are either not its em-
ployees or are otherwise ineligible to participate in collective bargain-
ing.8
Of the total employees in the Company's store and recreational divi-
sion in the Jenkins and. Van Lear areas, approximately 90 percent are
See Matter of Budd Wheel Company, 59 N. L . R. B. 420; Matter of Lillybrook Coal Com-
pany, 60 N. L. R. B. 31. See also Matter of Brown Company, 59 N. L. R. B. 1199; Matter
of Santa Rita Store Company , 62 N. L. R B. 804.
The Field Examiner reported that in the proceeding concerning the Jenkins employees,
the Union had submitted 168 designations dated between January 1 and April 30, 1945,
of which 80 checked with the Company' s pay roll of April ]., 1945, containing 142 names
within the claimed appropriate unit. The Field Examiner further reported that In the
proceeding concerning the Van Lear employees , the Union had submitted 18 designations
dated between January 1 and April 1, 1945, of which 15 checked with the Company's pay
roll of April 1, 1945, containing 15 names within the claimed appropriate unit.
9 The employees whom the Union would Include in the unit comprise those employed at
"various stores , recreational centers, a restaurant, a hospital , a garage, a manufacturing
plant, a service station, and a warehouse.
° There is no contention that the history of collective bargaining upon a multiple em-
ployer basis makes inappropriate a unit of the Company's store and recreational division
employees . Cf. Matter of Lillybrook Coal Company , 60 N. L R B 31.
s The employees whose inclusion Is objected to by the Company are hospital employees, a
part-time office and store clerk, part-time and extra employees , barbers, janitors, war
service employees , and employees in the classification of "supervisor ."'' The parties agredd
at the hearing to the exclusion of the funeral director, employed at the Company's funeral
home, together with office employees and store managers.
CONSOLItATIO1 COAL COMPANY 173
employed in the Jenkins area. Although the Company has employees
from this division in other areas outside the State of Kentucky, the
Union has limited its organization to the Jenkins and Van Lear em-
ployees of the Company. While the record discloses no regular inter-
change of employees between the Jenkins and Van Lear areas, the
employees in both groups are engaged in the same general type of
work, have the same wage scale and general working conditions, and
are under the direction of the same divisional and departmental man-
agers. As indicated above, the sole contention of the Company' is
that its store and recreational employees at Jenkins and Van Lear
should be divided along geographical' lines into a dozen or more
separate units consisting in the main of single stores and recreation
buildings. In view of the similarity of the work performed by em-
ployees in the various categories throughout the Jenkins and Van
Lear areas, the identity of over-all supervision, and the fact that
many of the individual stores and recreation buildings herein con-
cerned are situated in close proximity to one another within the limits
of a single township, we are of the opinion that the record does not
provide an adt3ciuate basis for the creation of the multiple units urged
by the Company.
There remains for consideration .the question of inclusions and ex-
clusions from the unit. Among other classifications to which it objects,
the Company contends 'that the hospital employees at Jenkins should
be excluded upon the ground that they are not employees of the Com-
pany. The evidence reveals that while the Company is the owner of
all the hospital property and equipment, the hospital itself is,operated
by a lessee under a regularly authorized business certificate. The lessee
has sole authority to hire and discharge employees of the hospital and
otherwise determine their rates of pay, hours and general working
conditions. Under the circumstances, we find that hospital employees
are not employees of the Company and we shall, accordingly, exclude
them from the unit.9
The Company contends that barbers and janitors should be excluded
'from the unit. The Company employs four barbers in connection with
its recreation activities and several janitors at certain of its stores and
one of its recreation buildings. The Company's contention that bar-
bers be excluded is based upon the fact that barbers, unlike other
employees, are paid upon a commission basis, as the result of which
it is urged that they are independent contractors and not employees
of the Company. The evidence discloses, however, that barbers,
although paid on a different basis than that of the other employees
herein concerned, may be hired and discharged by the Company in
the same manner as other employees. Accordingly, we find that bar-
See Matter of Consolidated Vuitee Aircraft Corporation, 57 N . L. R. B. 1680.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers are employees of the Company who have substantial interest in
common with the employees in the Company's recreational activities.
We shall, therefore, include barbers within the unit. So far as the
several janitors are concerned, since it appears that they perform
maintenance work in connection with the store and recreation build-
ings, we shall include them within the unit.
The only remaining questions to be considered relate to the Com-
pany's proposed exclusion of war service employees and employees in
the classification of "supervisor."
The contention of the Company that war service employees be
excluded from the unit is based upon the theory that they are temporary
employees who are not expected to remain in the Company's employ
at the end of the present war. Since it appears that war service en7-
ployees have a reasonable expectancy of employment for an indefinite
period, we shall, in accordance with our usual practice, include them
within the unit.10
The Company would exclude from the unit employees in the classi-
fication of "supervisor" upon the ground that they exercise supervisory
authority within the usual meaning of the term. The Union contends
that employees in this classification are not in fact supervisory and
should be included within the unit. The evidence discloses that cer-
tain facilities have "supervisors" immediately under the managers of
such facilities; that these "supervisors," whose supervision covers from
3 to 18 employees, respectively, have general authority to recommend
the discharge of employees under their supervision, which recommen-
dations have in certain instances been followed by the higher manage-
ment officials of the Company. It also appears that the "supervisors"
in question not only on occasion attend management meetings at which
personnel matters are discussed, but also substitute for the managers
in the litters' absence, on which occasions they are authorized to dis-
charge employees for certain violations. Accordingly, we find that
employees in the classification of "supervisors" are supervisory em-
ployees within the meaning of our usual definition; we shall exclude
them from the unit.
We find that all employees at the Company's stores, recreational
facilities, garage, manufacturing plants, restaurant, service station, and
warehouse in the Jenkins and Van Lear, Kentucky, divisions, including
barbers, the janitor, and war service employees, but excluding office
employees, confidential employees,11 hospital employees, the funeral
director, managers, "supervisors," and all other employees having the
10 See Matter of R R. Donnelley ct Sons Company, 59 N L R B 122
11 Excluded under this classification is Levada Rice who, the record shows, does part-
time secretarial work for the manager and has access to personnel records of the office in
the Van Lear recreational building 4
CONSOLIDATION COAL COMPANY 175
authority to hire, discharge, promote, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such ac-
tion, constitute a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the Direc-
tion.
The Company contends that, in view of the fact that a considerable
number of the Company's employees are now in the armed services,
the election should be deferred until a substantial number of such
employees return to their employment with the Company. The Board
has held that a union's status as majority representative may be de-
termined without reference to the number of employees in an appro-
priate unit who are members of the armed forces, since the interest of
the employees in the appropriate unit now at work in immediately
collective bargaining outweighs the more remote interest of military
personnel in present terms and conditions of employment.12 Accord-
ingly, we shall not defer a determination of representatives. The
Company further suggests that its employees in the armed services
be permitted to vote by mail. We see no reason for departing from
our usual practice in this respect and shall provide, that only such em-
ployees in the armed forces who present themselves in person at the
polls may participate in the election 13
The Company suggests.that various types of part-time or extra em-
ployees, employed in connection with the Company's recreational
activities, be found ineligible to vote. While the record does not
indicate which of these employees have regularly recurring hours of
employment as distinguished from those whose employment is of a
temporary or casual nature, it is undisputed that certain of these
employees are regularly employed on a part-time basis. In accord-
ance with our usual practice, we shall declare eligible to vote all regular
part-time or so-called extra employees, but shall exclude from partici-
pation in the election all such employees who are not regularly em-
ployed by the Company. 4
u See Matter of Supersweet Feed Company, Incorporated, and Minnesota Bi-Products,
Inc., 62 N. L. R B. 53.
13 See Matter of Mine Safety Appliances Co., Callery Plant, Callery,.Pa., 55 N. L. R. B.
1190; Matter of Airpath Instrument Company, 56 N. L. R B 236.
14 See Matter of Lyon Metal Products, Incorporated,. 62 N. L. R. B 1350.
176 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Consolidation
Coal Company, Jenkins, Kentucky, an election by secret ballot shall
be conducted as early as possible, but not later than thirty (30)
days from the, date of this Direction, under the direction and super-
vision of the Regional Director for the Ninth' Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees in the armed forces of
the United States who present themselves in person at the polls, but
excluding any who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election,
to determine whether or not they desire to be represented by United
Construction Workers, affiliated with United Mine Workers of Amer-
ica, for the purposes of collective bargaining.
MR. GERARD- D. REILLY took no part in the consideration of the
above Decision and Direction of ,Election.