Little Lump Coal Co., 1499 (1963)

DECISION AND ORDER

On August 13, 1963, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to na three-member panel [Chairman McCulloch and Members Leedom and Brown].

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in these cases,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications :

The Trial Examiner found, and we agree, that the Respondent unlawfully solicited authorization cards from his employees on behalf of SLU, thereby violating Section 8 (a) (1) and (2). We also find that since SLU did not represent an uncoerced majority of the Respondent's employees on December 20, 1962, the Respondent further violated Section 8(a) (2) and (1) by recognizing SLU as such repi The Trial Examiner found that the bargaining agreement between Respondent and the Southern Labor Union , hereinafter referred to as SLU, was , except for a more liberal vacation provision , the same as the one previously executed by United Mine workers and the predecessor company, Frank and Frank B. Coal Company. The record shows that the terms in the SLU agreement were, except for a more liberal vacation provision , the same as those provided to employees by the Respondent prior to the negotiation of the SLU agreement, and not the same as those provided in the Frank and Frank B Coal Company agreement. This error is corrected, but does not otherwise require modification of the Trial Examiner' s conclusions and recommendations.

144 NLRB No. 147.

resentative and by entering into a collective bargaining agreement containing a union-security clause with SLU on that date.' The Trial Examiner also found, as do we, that the Respondent, by discharging employees Lee and Floyd Dotson, Blackburn, and Smith pursuant to the union-security clause in the above contract, violated Section 8 (a) (1), (2), and (3). Although the discharges of the latter two employees was not alleged in the complaint, in finding violations as to them, the Trial Examiner relied on the fact that the issues relating to the discharges of Blackburn and Smith had been fully litigated at the hearing. We agree. However, in'addition to the cases relied on by the Trial Examiner in this connection, we rely on the Board's decision in Clear field Cheese Company, Inc., 106 NLRB 417, 424, modified on other grounds 213 F. 2d 70 (C.A. 3). There, the Board found that the respondent employer violated Section 8(a) (3) by unlawfully discharging and thereafter unlawfully refusing to reinstate a number of its employees who were unfair labor practice strikers.

Although the complaint did not name employee Duke as a discriminatee, the Board found a violation with respect to him and included him in its order for reinstatement on the ground that the issues of his discharge had been fully litigated at the hearing.' We deem the instant case to be analogous.

ORDER

The Board adopts as its Order the Recommended Order of the Trial Examiner.4

2 In view of the above, we find it unnecessary to pass upon the Trial Examiner's finding that the SLU did not represent a majority of Respondent 's employees in the appropriate unit at the time Respondent accorded recognition to SLU. Even assuming that the SLU did represent a majority , such majority was obtained with, and as the result of, unlawful assistance rendered by Respondent. By recognizing and negotiating a collective- bargaining contract with the unlawfully assisted SLU, Respondent therefore violated Section 8(a) (2) and (1 ) of the Act 3 Local 542, International Union of Operating Engineers , AFL-CIO ( Elmhurst Contracting Co , Inc (Division of Hagan Industries, Inc.)), 141 NLRB 53, is distinguishable.

Although the Board there refused to find that the respondent violated the Act by causing the company to discriminate against two employees on the ground that they had not been named in the complaint , the Board expressly relied on facts not present in the instant case. There, the Trial Examiner stated throughout the hearing that lie took a strict view of the pleadings and that if the General Counsel wished to present evidence beyond the pleadings, his recourse was to amend the complaint ; and the General Counsel stated both at the hearing and in his brief that he considered evidence concerning the discharge of the two employees not named in the complaint only as background evidence to prove other violations.

* The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph:

Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Frank B. Smith d/b/a Little Lump Coal Co., its officers, agents, successors, and assigns, shall:

INTERMEDIATE REPORT AND RECOMMENDED ORDER

STATEMENT OF THE CASE

Upon charges and amended charges filed by Floyd and Lee Dotson, respectively, on March 13 and April 1 , 1963, the Regional Director for the Ninth Region of the LITTLE LUMP COAL CO. 1501

National Labor Relations Board, herein called the Board, issued a consolidated complaint on April 26, 1963, against Frank B. Smith d/b/a Little Lump Coal Co.,

Respondent herein, alleging violations of Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. Thereafter during the course of the hearing in this matter the complaint was amended in certain respects In its duly filed answer, and in its further answer made orally upon the record, Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices.

Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher in Williamson, West Virginia, on June 12, 1963. All parties were represented and afforded full opportunity to be heard, to present oral argument, and to file briefs with me. Briefs were filed by Respondent and General Counsel on July 8, 1963.

Upon consideration of the entire record in this case, including the briefs of the parties, and upon my observation of each of the witnesses appearing before me,' I make the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

  1. THE BUSINESS OF THE RESPONDENT Respondent Frank B. Smith is an individual proprietor engaged in the mining, shipping, and selling of coal at mines located in McCarr, Kentucky, under the trade name of Little Lump Coal Co. The parties stipulated that during the period between August 1962, when the operations commenced, and April 1, 1963, being a representative period, Respondent produced coal at his McCarr, Kentucky, mines valued in excess of $50,000 and shipped said coal directly to points outside of the Commonwealth of Kentucky. Upon the foregoing stipulated facts I conclude and find Respondent to be engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

    H. THE LABOR ORGANIZATIONS INVOLVED Southern Labor Union and United Mine Workers of America are organizations involved in the subject matter of these proceedings. It is admitted that Southern Labor Union is a labor organization within the meaning of Section 2(5) of the Act and I so find and conclude. As the Board has so found on innumerable occasions with respect to United Mine Workers of America,2 I so find and conclude here.

  2. THE ISSUES INVOLVED 1. The agency status of Respondent's father.

    1. Whether the Southern Labor Union was unlawfully supported and assisted.

    2. The Southern Labor Union's representative status.

    3. Threats of reprisal and discharge as interference, restraint, and coercion.

    4. The unlawful discharges for failure to join Southern Labor Union.

    5. The inclusion in the findings and remedy of two unalleged discriminatees.

  3. THE UNFAIR LABOR PRACTICES A. Introduction The fluctuating operation and control of the mine properties involved here creates one of the major issues of the case-namely, whether the father of the present owner was or was not also his agent in the transactions alleged to be unlawful. A brief historical summary is therefore in order.

    1 Unless specifically indicated to the contrary any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part, upon his demeanor as I observed it at the time the testimony was given. Cf. Retail Clerks International Association AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, 1682, and footnote 3; Bryan Brothers Packing Company, 129 NLRB 285 To the extent that I indicate that I do not rely upon or reject in part or entirely the testimony of any given witness, it is my intent thereby to indicate that such part or whole of the testimony, as the case may be, is discredited by me Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1, enfd. 283 F 2d 569 (C.A. 2). To the extent that I credit any witness only in part I do so upon the established evidentiary rule that It Is not uncommon 'to believe some and not all' of a witness' testimony. N.L.R.B. v. Universal Camera Corporation, 179 F 2d 749, 754 (C.A. 2).

    2 See, for example, United Mine Workers of America ; et al. (Blue Ridge Coal Corporation), 129 NLRB 146, 154.

    At all relevant times the mine properties at McCarr, Kentucky, were owned by Standard Coal...

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