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that this employer should be separated from the organization and deal with your union?

Mr. OZANIC. That is correct.
Mr. MURDOCK. In that particular instance ?
Mr. OZANIC. That is correct.
Mr. MURDOCK. That is all, Mr. Chairman.

Mr. TOLAND. You don't hold, Mr. Ozanic, that any agreement by coal operators with any organization is the law as far as the employees are concerned under the National Labor Relations Act, do you?

Mr. OZANIC. I certainly do not.
Mr. TOLAND. Now, I will read from the opinion (Exhibit 74):

CNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR

RELATIONS BOARD

In the Matter of ALSTON COAL COMPANY and PROGRESSIVE MINE WORKERS OF

AMERICA, INTERNATIONAL UNION, AFFILIATED WITH AMERICAN FEDERATION OF LABOR. CASE No. R-1352

Mr. Daniel J. Leary for the Board.

Mr. George H. Malcolm and Mr. A. B. Keller, of Pittsburg, Kans., for the Operators Association and the Company.

Mr. James A. Glenn, of Coshocton, Ohio, and Mr. John R. Kane, of Springfield, Ill., for the Progressives.

Mr. C. C. Pinery, of Pittsburg, Kans., and Mr. T. C. Townsend, of Charleston, W. Va., for the United.

Miss Fannie M. Boyls, of counsel to the Board.

DECISION AND ORDER

STATEMENT OF THE CASE

On June 11, 1938, Progressive Mine Workers of America, International Union, affiliated with American Federation of Labor, herein called the Progressive, filed with the Regional Director for the Seventeenth Region (Kansas City, Missouri), a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Alston Coal Company, Pittsburg, Kansas, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 19 Stat. 449, herein called the Act. On October 21, 1938, the National Labor Relations Board, herein called the Board, ordered that the petition be dismissed but thereafter, on November 21, 1938, revoked its order dismissing the petition. On February 27, 1939, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of the National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice.

On March 10, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, Southwestern Inter-State Coal Operators' Association, herein called the Operators Association, the Progressive, and United Mine Workers of America, District No. 14, herein called the United, a labor organization claiming to represent employes directly affected by the investigation. Pursuant to orders postponing and transferring the hearing, potices of which were duly served upon all the parties, a hearing was held from April 3 to and including April 13, 1939, at Pittsburg, Kansas, before William R.' Ringer, the Trial Examiner duly designated by the Board.

At the commencement of the hearing the Operators Association and the United were permitted by the Trial Examiner to intervene. Also at the commencement of the hearing the Operators Association and the Company each filed a statement as an answer to the petition filed by the Progressive. The Board, the Company, the Operators Association, the Progressive, and the United were represented by counsel and participated in the hearing.

Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. After the conclusion of the hearings, the Progressive and the United filed briefs with the Board.

Upon the entire record in the case, the Board makes the following:

FINDINGS OF FACT

1. The business of the company

Alston Coal Company was incorporated under the laws of the State of Kansas on September 7, 1927, and was licensed to do business in Missouri in 1933. It is engaged in mining bituminous coal by the strip-mining method upon adjacent properties in Kansas and Missouri situated about four miles north and five miles east of Pittsburg, Kansas. It owns a small tract of land in Missouri upon which it maintains a tipple and preparation plant. The land from which the coal is mined, consisting of about 850 acres in Missouri and 300 acres in Kansas, is leased by the Company.

For several years prior to the hearing the Company had been mining coal exclusively from its Kansas lease and transporting the coal over train tracks owned by it to its tipple and preparation plant in Missouri. During the course of the hearing the Company commenced moving its operations to its Missouri lease where it planned to mine a vein of coal which runs from the Company's Missouri lease across the State line into its Kansas lease. The southeastern portion of the land owned by the Company is bounded by the Missouri, Pacific Railroad Company tracks. The Company owns sidings which comect with these tracks, which are used by the Missouri Pacific Railroad Company.

Between September 21, 1935, and March 31, 1939, all coal produced by the Company was sold under contract to the Commercial Fuel Company in Pitts. burgh, Kansas, which in turn sold the coal to wholesalers, railroads, and other consumers. During the year 1937 the Commercial Fuel Company sold and transported approximately 25,368 tons to railroads, 1,127 tons to wholesalers in Kansas and Missouri, and 166,022 tons to other customers in Kansas, Missouri, Nebraska, Iowa, Minnesota, and Oklahoma. Of the total amount only about 51,845 tons were sold and transported to purchasers within the State of Mis. souri. The Company's contract with the Commercial Fuel Company expired vo March 31, 1939, and was not renewed. However, since that date the coal sold hy the Company has been delivered to substantially the same destinations as the coal which had been sold by the Commercial Fuel Company.

In marketing its coal the Company uses the trade name “Imp Coal," which is registered for use in interstate commerce. It has at times advertised under that name in newspapers in Kansas City, Missouri, and Omaha, Nebraska, and in a trade magazine published and circulated in Missouri.

II. The organizations involved Progressive Mine Workers of America is a labor organization affiliated with the American Federation of Labor, herein called the A, F. of L. It was formed as an independent union in the State of Ilinois on September 1, 1932. In 1937 it became a federal union of the A. F. of L. and in April 1938 was chartered by the A. F. of L. as an international union. Local No. 301 of the Progressive was organized among employees of the Company in July 1938.

United Mine Workers of America is an international labor organization affiliated with the ('ongress of Industrial Organizations, herein called the (. I. 0. It has for many years had a local No. 66, among employees of the Company.

District No. 14 of the l'rited and District No. 3 of the Progressive are composed of the locals of the limited and the Progressive, respectively, within the States of Kansas and Missouri.

III. The operators association

Within the territory covered by District 14 of the United, and District 3 of the Progressive, there are three associations of coal mine operators. One of the

three, the Southwestern Interstate Coal Operators Association, of which the Company is a member, was organized in 1903 as a voluntary unincorporated association. It includes within its membership operators of coal mines in Kansas and Missouri, most of whom are engaged in mining coal within a radius of about 50 miles from Pittsburg, Kansas. About 90 percent of the mine employes within that area work for operators who are members of the Operators Association, At the date of the hearing 16 of approximately 22 operators within the territorial jurisdiction of the Operators Association were members of it.

The purposes of the Operators Association are stated in its constitution to be the organization into associate membership of coal mine operators in order to foster harmonious relations between them and build up and protect the coal mining industry; to bring about improved conditions in coal mining and safety in the conduct thereof; and to "take such steps as may be deemed best from time to time through publicity, legislative and statistical efforts, or act on any other matters as may be authorized by the Board of Directors, affecting and of interest to the members, to accomplish or to aid in the accomplishment of such purposes."

Although collective bargaining and the regulation of labor relations in behalf of its members is not expressly mentioned as one of the purposes, such matters hare been among its functions since its organization.

The record does not disclose the manner in which the members have delegated to the Operators Association authority to negotiate and enter into collective bargaining contracts in their behalf. That such authority has been delegated, however, is clearly evident from the fact that the Operators Association has in fact negotiated and entered into contracts for its operator members with the United over a period of 36 years. Its power to bind its members in that respect was not controverted at the hearing. We find it had such power.

The contracts thus negotiated are signed in behalf of the Operators Association by its president and general commissioner. The individual operators do not sign the contracts. The general commissioner is employed by the “Directory” of the Operators Association and has charge of negotiating collective-bargaining contracts. He is also a member of the Interstate Joint Commission which under the United contract is the final tribunal for settling disputes which arise between the operators and their employees.

The Company, since its incorporation in 1927, has been a member of and has accepted the Operators Association as its agent in negotiating and entering into collective bargaining contracts with the United and in representing the Company in labor controversies over which the Operators Association has been given jurisdiction under the contracts.

IV. The present controversy

In May 1938 Herman Eccher, Director of organization for the Progressive in its District No. 3, came to Pittsburg. Kansas, and sought to organize employees of the Company, all of whom were then members of the United. On July 6 a large majority of the employees met and voted to withdraw from the United and join the Progressive. They were then granted a charter as Local No. 301 of the Progressive.

During July representatives of the Progressive met several times with officials of the company and the general commissioner of the Operators Association. They requested that the company recognize the Progressive as the collective bargaining agency of employees of the company, presented the company with a petition signed by 48 of the approximately 60 employees of the company, revoking all prior authorizations for a check-off of dues for the United and authorizing the company to check off dues and assessments for the Progressive. They indicated that they would be willing to continue working under the terms of the United contract until its expiration date, March 31, 1939.

The United contract, which governs grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work for all employes of the operators holding membership in the Operators Association, provided, among other things, that the Company would “check off all union dues, assessments, fines, and initiation fees from all strip mine laborers."

The Company and the Operators Association took the position that this prorision of the contract obligated the Company to continue checking off dues for the United throughout the period covered by the contract. They further contended that by reason of this and other provisions of the contract not necessary here to set forth all employees of the Company were required to join the United and sign an authorization for the check-off of dues and assessments to be paid to the United.

This was also the contention of the United which had for a long period of years required all regular employees of the Company who were eligible for membership in the United to join it and sign a check-off authorization. Under these circumstances the Company refused to recognize and deal with the Progressive as the sole collective bargaining agency of its employees.

As the result of repeated demands by the United that all employees who were not members of the United be replaced by United members and that five of the Progressive members be immediately replaced, the Company, on August 2, 1938, laid off the five. Within a week thereafter all other members of the Progressive renounced their membership in that organization and rejoined the United.

On February 28, 1939, the Operators Association and the United entered into an agreement whereby their contract which was to expire on March 31, 1939, was extended pending the negotiation of a basic wage agreement by districts of the United which were participating in what was known as the Joint ADpalachian Wage Conference. This conference was in progress at the date of the hearing.

V. The appropriate unit The Progressive contends that all employees of the Company, ereluding siiperintendents, foremen, and office employees, constitute a unit appropriate for the purpose of collective bargaining. The United contends that the appropriate unit should consist of the employees of all operators holding membership in the Operators Association.

The District of the United, since being affiliated with the C. I. (. and prior thereto while affiliated with the A. F. of L., has negotiated and entered into contracts with operators' associations based upon agreements reached by the United with operators' associations in a representative area. For some time prior to 1933, this representative area was called the Central Competitive Field and embraced the States of Indiana, Illinois, Ohio, and Pennsylvania.

Since 1933 the Appalachian area, embracing the States of Pensylvania, West Virginia, Virginia, Kentucky, Alabama, Tennessee, Michigan, and Obio, has been the representative area for which the basic agreement has been negotiated. After the basic agreement has been reached, the scale committee, or bargaining committee, of each District of the United has met with representatives of the various operators' associations and made contracts embodying the basic provisions of the Appalachian agreement.

Each operator who has not joined an operator association but whose employees are members of the United has signed an agreement with the United obligating itself to abide by the terms of the contract negotiated between the United and the Operator Association in the area in which such operator is located.

The Progressive, too, has bargained on an association-wide basis. In minois where it was organized in 1932 District No. 1 of the Progressive has negotiated contracts with the Coal Producers Association of Ilinois. These contracts have been adopted by operators in Minois who are not members of the ('oal Producers Association of Illinois, but whose employees are members of the Progressive. Approximately 160 locals of the Progressive at approximately that number of mines in Ilinois are covered by the contracts negotiated be tween District No. 1 of the Progressive and the Coal Producers Association of Ilinois,

As we have hereinbefore stated, approximately 90 percent of the operators within the territorial jurisdiction of the Operators Association are members of it. The fact that it has for 36 years been negotiating contracts with the United in behalf of those operators and in the further fact that nonmembers of the Operators Association whose employees are members of the United hare been adopting and agreeing to abide by those contracts indicate that the operators as well as the employees have considered collective bargaining on an asseciation-wide basis as desirable. Bargaining and making contracts on such a basis has helped to stabilize the coal mining industry and place the mines on a fair competitive basis, a condition which would be very difficult of achierement if separate contracts were negotiated with each operator. We see reason to depart from the practice of the parties as evidenced by these contractual relations prevailing over a long period of time.

no

The Progressive contends that the Act does not permit the Board to decide that a bargaining unit which is broader than the individual employer or operator is appropriate. The Board is expressly authorized by the Act, however, to decide that the employer unit is the unit most appropriate for purposes of collective bargaining. The Act includes within the definition of "employer" "any person acting in the interest of an employer, directly or indirectly," and includes within the definition of “person" "one or more

association." We are therefore authorized to find, and we do find, that the Operators Association is an employer within the meaning of the Act.

For the reasons set forth above in this section, and in view of the entire record, we are of the opinion that the unit claimed by the Progressive does not constitute a unit appropriate for the purposes of collective bargaining. We shall therefore dismiss the petition of the Progressive.

Then there is a lot of citations which I am not going to read [continuing reading]:

VI. The question concerning representation Since, as stated in Section V above, we are unable to find an appropriate unit within the scope of the petition filed in this case, we find that no question has been raised concerning the representation of employees of the Company in an appropriate bargaining unit.

Upon the basis of the above findings of fact, and the entire record in the case, the Board makes the following:

CONCLUSION OF LAW

No question concerning representation of employees of Alston Coal Company, Pittsburg, Kansas, in unit which is appropriate for the purposes of collective bargaining has arisen, within the meaning of Section 9 (c) of the National Labor Relations Act.

ORDER

Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby dismisses the petition for investigation and certification filed by Progressive Mine Workers of America, International C'nion, Affiliated with American Federation of Labor.

Signed at Washington, D. C., this 18th day of July 1939. [SEAL)

J. WARREN MADDEN,

Chairman,
EDWIN S. SMITH,

Member,
WM. M. LEISERSON,

Member,

National Labor Relations Board. Mr. TOLAND. In that connection, Mr. Chairman, I would like again to refer to the references I made to the debates in the House of Representatives at the time the act was under consideration by Congress.

Mr. Fahy. Mr. Chairman, may I make another reference at this point to the Congressional Record bearing on the employer unit?

The CHAIRMAN. How long will you want?
Mr. Fahy. It is about six lines.
The CHAIRMAN. Go ahead, sir.
Mr. Fahy. Congressman Ramspeck had proposed-

Mr. TOLAND. Mr. Fahy, will you state for the record what you are reading from, please?

Mr. Fahy. I am reading from a brief-
Mr. TOLAND. In what case?

Mr. Fahy. In the so-called Longshoreman case, filed in the Supreme Court, but I am not reading an argument; it is just a reference I want to make.

The CHAIRMAN. I understand.

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