Rochester and Pittsburgh Coal Co.

National Labor Relations Board - Board Decisions

Jun 29, 1944

56 N.L.R.B. 1760 (N.L.R.B. 1944)

In the Matter of ROCHESTER' AND PITTSBURGH COAL COMPANY and
UNITED CLERICAL, TECHNICAL AND SUPERVISORY EMPLOYEES UNION OF
THE.MINING INDUSTRY, DIVISION OF DISTRICT 50, UNITED MINE WORK-
ERS OF AMERICA
Case No. 6-R-896.-Decided June 99,1944
Mr. Harry 1 . Heilman, of Kittanning, Pa., Mr . Frank G . Smith, of
Clearfield , Pa., and Mr. James W. Mack , Sr., of Indiana, Pa., for the
,Company.
Messrs . Samuel Krimsly and John McAlpine, of Pittsburgh, Pa.,
for the Union.
Mrs. Augusta Spaulding , of counsel to the Board.
- DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a petition duly filed by United Clerical, Technical and Super-
visory Employees Union of The Mining Industry, Division of District
50, United Mine Workers of America, herein called the Union, alleg-
ing that a question affecting commerce had arisen concerning the repre-
sentation of employees of Rochester and Pittsburgh' Coal Company,
Indiana, Pennsylvania, herein called the Company, the National
Labor_ Relations Board provided for an appropriate hearing upon
due notice before W. G. Stuart Sherman, Trial Examiner. Said hear-
ing was held at Indiana, Pennsylvania, on March 10 and 11, 1944. The
Company and the Union appeared,, participated, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. The Trial Exam-,
iner's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. All parties were afforded an opportunity to file
briefs with the Board. The request of the Company for oral argument
is hereby denied.
Upon the entire record in the case, the Board makes the following :
56 N. L. R. B., No. 313.
1760
ROCHESTER AND PITTSBURGH COAL COMPANY
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
1761
Rochester and Pittsburgh Coal Company operates coal mines, coke
ovens, and auxiliary facilities in Pennsylvania. The main office of
the Company is at Indiana, Pennsylvania. For its operations during
the years 1942 and 1943, the Company purchased equipment, materials,
and machinery valued in excess of $1,000,000, of,which more than 40 ,
percent by value was purchased,and shipped-to the Company's prop-
erties from points outside Pennsylvania. During the year 1943,the
Company produced coal valued in excess of $12,000,000, of which
approximately 90 percent was sold and shipped to points outside
Pennsylvania.
The Company admits that it is engaged in commerce, within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
United Clerical, Technical and Supervisory - Employees Union of
The Mining Industry, -Division of District 50, is a labor organization
affiliated with United Mine Workers of America, admitting to mem=
bership employees of the Company.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
The Company operates eight coal mines and a string of beehive
coke ovens in Pennsylvania. Its auxiliary properties ' include power
plants, an extensive supply department, a machine repair department,
and a laboratory. The, Company's main office at Indiana, Pennsyl-
vania, is centrally located with respect to its numerous work centers.
At each mine and at each auxiliary plant except the power plants, the
Company maintains an auxiliary or branch office.
Since 1939 the Company has recognized United Mine Workers of
America, herein called the U. M. W. of A., as the sole bargaining repre-
sentative of miners and other employees who work in and about its
mines, auxiliary plants, and properties, and the Company, as a member
of Central Pennsylvania Coal Producers' Association, bargains with
the U. M. W. of A. on a multiple-employer basis with other employer
members of that association on behalf of such employees. These
contracts with the U. M.. W. of A. cover approximately 4,500 of the
Company's 5,000 employees. The contracts, however, expressly
exclude from coverage, supervisory; clerical, and technical employees
on the Company's 'pay roll. Employees in these excluded categories
at the time of the hearing numbered, respectively, 358, 124,.and 36.
1762 ' , DECISIONS, OF NATIONAL LABOR RELATIONS ;BOARD
In 1941, Mine Officials' Union of America, ; an unaffiliated labor
organization, organized the Company's technical and supervisory em-'
ployees. The Company, -although asked to do' so, did not, recognize
that organization as bargaining representative for any group of its
employees. , On July 28, 1942, Mine Officials' Union of America filed
at the Board's Regional Office a petition for investigation and certifi-
cation • in Case No. 6-R-543, alleging that 'supervisory employees of
,the Company ' constituted an, appropriate bargaining unit. On
November 30, 1942, before formal action was taken thereon, the peti-
tion was withdrawn without prejudice: ,
Previous to October 1942,'the U. M. W. of A. did not accept `into
membership supervisory, technical, and office employees and,' as noted
above, its contracts covering manual workers in the employ of the
Company and other coal employers specifically excluded employees
in these categories from coverage. In its general convention in Octo-
ber 1942, however, the U. M. W. of A. adopted a resolution a'uthoriz-
iilg its executive committee to admit groups of these hitherto excluded
employees into affiliation with the U. M. W. of A. as a parent body.
On April 1, 1943, United Clerical, Technical, and Supervisory Em-
ployees' Union 'of The Mining Industry, Division of District 50, the
petitioner in this proceeding, herein called the Union, was duly organ-
ized as an affiliate of the U. M. W. of A. and it succeeded Mine Officials'
Union, of America as an organization claiming to represent employees
of the Company. , ° ,
On-November 12,1943 the Union asked the Company for formal rec-
ognition as` bargaining representatives of supervisory, technical, and
clerical employees working at the'Company's mines and other proper-
ties.. Upon the Company's failure to accord such recognition, the
Union filed the original petition in this proc'ee'ding,'alleg'ing that cleri-
cal. and technical employees of the Company,, excluding supervisory
employees, constituted an appropriate bargaining unit.'
It is clear that the Union has abandoned its original desire to group
technical, clerical, and supervisory employees of the Company in ,a'
.single bargaining unit and that, in this,proceeding, it presently desires
certification as bargaining, representatives of technical and, clerical
employees in a unit, from which supervisory employees" are expressly
excluded. While the parties disagree with respect to, certain cata-
gories of clerical and technical employees who should be included in a
' On January 13, 1944, the Union filed an amended petition, excluding from its proposed
unit clerical' employees in 'the Company' s general or main office at Indiana . At the hearing
the Union ,further amended the unit which At contends is appropriate for bargaining,' by
including and excluding , respectively, employees in certain defined job classifications. In
view of our dismissal of the petition as amended on grounds other than that of the ,ap-
propriateness of the proposed, unit, we find it unnecessary at this time-to resolve the issues
as to these employees or to make any finding with 'respect to a bargaining unit appropriate
for the Company 's employees. _
ROCHESTER AND PITTSBURGH COAL COMPANY 1763
single bargaining unit, the primary issue between them is not the'
scope of the appropriate unit, but the competence of the petitioning
labor organization to represent such employees. /
Members of the petitioner who occupy supervisory positions with
the company outnumber members who occupy non-supervisory clerical
and technical positions. Such supervisory -employees serve on the
Union's executive committee and take a prominent part in union
.affairs. By their numbers they necessarily control the Union's poli-
cies and practices. The petitioner contends that the single issue in
this proceeding is the appropriate unit for the Company's clerical
and- technical employees and that substantial- control of the Union
by supervisory employees -is not material thereto, since supervisory
employees are specifically excluded from the bargaining unit pro-
posed as appropriate. The Company takes exception to this position
and contends,,inter ilia, that the control of the Union by supervisory,
employees renders that labor organization incapable of representing
in good faith non-supervisory employees with their employer.2
In an early representation case,3 in which a labor organization of
the type popularly known as an employees' representation plan
claimed to represent certain employees, we found that the employer's
control of the organization prevented it from being considered as the
representative of employees for the purposes of collective bargaining,
enunciating the principle that an organization which- is subject to an
employer's control'cannot be certified as a bargaining representative,
since it is patently incapable of bargaining at arm's length with the
employer. In a subsequent case,4 where a participating organization
was admittedly conceived and organized by a supervisory employee,
we-applied this principle, finding that the organization could not be
considered a bona fide representative of employees for the. purpose
of collective bargaining and,, accordingly, denied it a place upon the
ballot. More recently, in Matter of The Toledo Stamping and Manv-
factoring Company,5 we declined to direct an election on the petition
of a labor organization whose claim to represent the employees
affected by the petition was shown by application cards secured with
the assistance of a supervisor. Thus, although in proceedings under
Section 9 (c) of the Act we do not ordinarily consider issues as to the
character and activities of the labor organizations seeking certifica-
tion as the collective bargaining representative of employees affected
2 In view of the position of the Union expressed at the bearing, and the admissions of its
representatives, it is unnecessary for us to rule upon the offer 'of proof made by the Com-
pany and to review the ruling of the Trial Examiner with respect to the exclusion of certain
exhibits offered by the Company concerning the activity of supervisory employees.
2 Matter of Phelps-Dodge Corporation, United Verde Branch, 6 N. L. R. B. 624.
4Matter of Douglas Aircraft Company, Inc., 53 N. L. R. B 486.
5 55 N. L R B. 865.
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the proceedings," we will not, where the facts are admitted- and
their import is unmistakable, knowingly accord a place 'on the ballot
in any election conducted by the Board to a labor organization which
is not capable of dealing on behalf of ordinary employees 7 at arm's
length with their employer.
Consequently, the present case is distinguishable from certain cases
relied upon by the petitioner, in which the Board has certified a labor
organization as bargaining representative of a group of employees
who had previously been excluded from a bargaining unit of other
employees of the same employer. These cases 8 merely stand for the
proposition that there is no policy in the Act which prevents a labor
organization from representing a number of different groups of em-
ployees of the same employer in separate bargaining units keyed to
and based upon their different employment interests. Those de-
cisions, however, have no bearing upon a case in which'the petitioner
makes no denial of the union activity of the supervisory employees, nor
of their domination and control of the organization. The record here
shows that supervisors who belong to the union have repeatedly
brought pressure upon subordinate employees to join. The Mary-
Zand Drydock 9 and Soss 10 cases, taken together, clearly condemn the,
representation of ordinary employees and supervisory employees by
the same labor organization, both because of the inherent threat to
the freedom of choice by ordinary employees and because of the ir-
reconcilable and conflicting positions in which such affiliations would
place supervisors. The requirement that a labor organization be free
of managerial control and fully competent to represent all employees
in the proposed bargaining unit is a fundamental one, and to the ex-
tent in which the Revere Copper-case" seemed to depart from this
principle, it must be deemed overruled.
For the foregoing reasons, we are constrained to dismiss the petition.
ORDER
Upon the basis of the above findings of fact and the entire record
in the case, the National Labor Relations Board hereby orders that the
petition for investigation and certification of representatives of em-
ployees of Rochester and Pittsburgh Coal Company, Indiana, Penn-
Cf. Matter of J & A. Young, Inc., 9 N. L. R., B . 1164 ; Matter of TabardreV Manufac-
turing Compan y, 51 N. L. R B. 246; Matter of R if. LeTourneau, Inc., 36 N . L. It. B. 744;
and Mattel of J Greenebaum Tanning Company , 49 N. L It. B. 787.
7In the term "ordinary employees," we include employees , skilled or unskilled , who occupy
non-supervisory positions of employment.
8 See Matter of Pacific Gas and Electric Company , 52 N. L. It. B. 1204 ; Matter of The
Chrysler Corporation, 44 N. L. It. B. 881.
9 Matter of The Maryland Drydock Company , 49 N. L. R. B. 733.
10 Matter of Coss Manufacturing Company, 56 N. L. It. B. 348.
11 Matter of Revere Copper and Brass, Inc ., 51 N. L. R. B. 350.
ROCHESTER AND PITTSBURGH COAL COMPANY 1765
sylvania, 'filed by United Clerical, Technical and Supervisory Em-
ployees Union of The Mining Industry, Division of District 50,
affiliated with United Mine Workers of America, be and it hereby 'is,
dismissed.
Separate opinion of Chairman HARRY A. MILLIS :
While I am not wholly satisfied that the rationale of my colleagues
warrants the dismissal of the petition in this case, I am constrained
to concur in the result reached by them. In my dissenting opinion in
The Maryland Drydock 12 case I stated that I believed that, "in the
interest of effectuating its determination as to the boundaries of the
appropriate unit, the Board may in its discretion require that super-
visory and subordinate groups shall be independent of one another in
union meetings, in the formulation of demands upon management,
and in the approval or disapproval of tentative agreements." , Had
such provision for segregation appeared here, I should have enter-
tained this petition, and assuming the otherwise appropriateness of
the unit requested, directed an election. The record in this case, how-
ever, is bare of any such- undertaking on the part of the petitioner.,
Its contention that the exclusion of supervisory employees from the
requested unit cures this defect does not meet the issue. For, even
though it be granted that the subordinate employees themselves con-
stitute an appropriate unit, the impact upon prospective collective
bargaining in which subordinate interests are largely represented by
,supervisory employees is not dissipated by a pro forma exclusion of
the latter from the purview of a petition under Section 9 (c) of the
Act. That the interests of supervisory groups in collective bargain-
ing are distinguishable from those of rank and file employees is pat-
ent. And while both interests are properly deserving of encourage-
ment by this Board, in my opinion, optimum results, toward this end
may more satisfactorily be achieved by the realistic recognition that
such interests are furthered when appropriate demarcation lines are
observed.
]2 49 N L R. B. 733, at page 744