Page images
[ocr errors]

aggrieved party, under a decision such as was rendered in the Alston case, can be carried into court.

Mr. Fahy. As to a representation case such as the Alston case, I think the witness has answered the question substantially correct; I would simply add that if the employer, under our view, should refuse to abide by the representation stated in the decision, then the Board can file a complaint for refusal to bargain under section 10 and make an order to bargain with the unit found by the Board to be the proper bargaining unit. Now, when the employer is placed under an order to do that, section 10 says that, in that event, there is review." to that time he is not under

any order. Mr. ToLAND. But that is a procedure against the employer and not against the union.

Mr. Fahy. Correct.

Mr. HALLECK. And if the employer didn't see fit to move, the employees, for instance, who have joined the Progressive Mine Workers, of themselves, on their own action, have no further appeal?

Mr. Fahy. Yes.

Mr. TOLAND. A somewhat similar question is before the Court now, isn't it, Mr. Fahy?

Mr. Fahy. Correct. That point is before the Supreme Court now. I agree with the statement of the witness in that regard, where there is no order against the employer. I should add that there is a wellestablished practice of the Board itself to consider petitions for reconsideration of decisions

Mr. TOLAND. Are they very often granted, Mr. Fahy?

The C'HAIRMAN. I would rather you would not go into that further now. I wish you would go on with this witness.

Mr. HALLECK. If I might go back to these five men who were discharged, and I understand four of whom are still out of employment, did they file a so-called “C” case, complaint case?

Mr. OzANIC. Yes.
Mr. HALLECK. For reinstatement?
Mr. OZANIC. Yes.
Mr. HALLECK. What happened to that case?
Mr. Ozanic. The case was dismissed.

Mr. HALLECK. Was there any finding or reason given in the record for that decision?

Mr. ToLand. Nothing appears that we have made any record of as the reason why it should be or was dismissed. I read from the file, the informal file in that case, which I have before me

Mr. HALLECK (interposing). Yes, I recall that.

Mr. ToLand. And there is nothing here that indicates why the complaint should be dismissed and I call to your attention again the quotation that is contained in a communication from Emerson to Witt, which states: “This is not a closed shop contract, and the treatment of it as such seems to me inconsistent with such decisions as the Electric Vacuum, and so forth, requiring notice to the employee."

Mr. HALLECK. I don't know whether the witness knows about it, but I would like to clear this up in my own mind while we are on it. Was there any finding by the Board or by Mr. Witt definitely on the question as to whether or not there was a closed shop?

Mr. TOLAND. The only memorandum I find is one that I just mentioned, and which says that this is not a closed-shop case.

Mr. HALLECK. Now, am I correct in my understanding that if it was not a closed-shop case, that there might be some possibility that the discharge of these five men would have been in violation of the Act?

Mr. TOLAND. There is good ground for that belief.

Mr. HALLECK. But I take it the Board itself might not agree with the recommendation of Mr. Emerson?

Mr. TOLAND. I find nothing in the file to show that the Board reached the conclusion that it was a closed-shop contract. As a matter of fact, I don't think that the United Mine Workers had a closedshop contract—and check me and see if I am correct_until the Appalachian agreement was signed this year.

Mr. Ozanic. That_is absolutely correct, and even at the time this case was before the Board

Mr. TOLAND (interposing). That was signed this year, and the cases involved discharges prior to the signing of the Appalachian agreement in New York in the early part of 1939.

Mr. HALLECK. Of course, there was reference to the check-off. Apparently there was some system of check-off.

Let me ask you, Mr. Ozanic, do you have a closed-shop contract !

Mr. OZANIC. We have, and ours is ratified by a referendum vote of the rank and file that work under that contract.

Mr. HALLECK. But you do have a closed-shop contract ?
Mr. OZANIC. We do in Illinois.

Mr. HALLECK. Does that so operate that any person mining coal there, employed by a company with whom you have a contract, must belong to your union?

Mr. Ozanic. No; it provides merely that the employer agrees to employ members of the Progressive Mine Workers when they are arailable and qualified. In that case, the making of that contract, first the officers and members of the scale committee who negotiate that sort of a contract with the employer are elected by the membership, you understand. After the contract has been negotiated, whatever its terms may be, before that contract can be signed and put into effect, it is submitted back to the rank and file of the Mine Workers for a referendum vote, for them to approve or reject it. Consequently, any closed shop contracts that we make bear the approval of the rank and file before they are executed. In this case the officers are appointed. They are provisional officers. The miners didn't have any say in the scale negotiations. They were not consulted after the contract was made--and it was made behind closed doors without their sanction. Furthermore, while the Alston Coal (o, case was pending before the Board—and which case has never been tried but was dismissed without a hearing-it will be brought out before this committee that at the time these men were discharged, at that time there was one man working in this same mine that was not a member of any union, plainly proving that this was an openshop contract.

Mr. MURDOCK. Mr. Chairman, I am advised that there is a memorardum in the file showing that the Board found that there was a closed-shop contract, and I ask that the committee's counsel make diligent search for that.

Mr. TOLAND. I shall be glad to have it located if possible.

Mr. MURDOCK. So we can ascertain just what the Board did. Let me ask one further question.

I am also advised, Mr. Ozanic, that the Board has established a policy of rehearing cases such as the Alston case, where you think that you are aggrieved by something that came up unanticipated : that you do have a right to file a petition or a motion for rehearing.

Mr. TOLAND. Will you state for the record, Mr. Congressman, where that appears in the rules and regulations of the Board, and where it was first announced to the public that a petition for rehearing may be filed with the Board ?

Mr. MURDOCK. I am very unfamiliar with it, and I am merely quoting Mr. Fahy in his statement that that can be done.

Mr. TOLAND. I am a little bit familiar with the practice, and I don't know anything about any notice of the right to file petitions for rehearing in the rules, and by public notice by the Board.

Mr. OZANIC. Neither do we. Mr. Congressman, if you will permit me, I would like to say this: One of the members of the committee don't know the gentleman's name--asked about the Alston "C"" case, and whether it was dismissed and what happened to it. I would like to have Exhibit K-8 made a part of the record with reference to that case. I call the attention of the committee to Exhibit K-8, dated March 2, 1939, and with the permission of the committee I would like to read it.

Mr. TOLAND. May I show it to you first, because that is the usual procedure? I show you what purports to be a copy of a letter from Mr. Broderick to James A. Glenn, dated March 2, 1939, and ask you if it is a true and correct copy (showing a paper to the witness)!

Mr. OZANIC. It is; and the original is in this file here. I would like to read that to the commitee.

Mr. TOLAND. I ask that it be admitted in evidence.

(Letter, March 2, 1939, Broderick to Glenn, was received in evidence, as read below, and marked "Exhibit No. 77.”)

Go ahead, Mr. Ozanic.

Mr. OZANIC. This letter is dated March 2, 1939, addressed to James A. Glenn, attorney at law. Lee Building, Coshocton, Ohio, who is counsel for the international union.

Mr. HALLECK. What international union?

Mr. OZANIC. The Progressive Mine Workers, the union that I am representing here, and is regarding the Alxton Coal Co. caxex, R-84 and C-395:

DEAR MR, GLENN: This is in reply to your letter of March 1, 1939, addressed to HI. H. Foster, Jr., of this office, which refers to the above-entitled cases.

In order that there may be no misunderstanding in connection with Mr. Eccher's statement to you "that an election would be held in this matter," I wish to advise that while the Board may find it necessary to hold an election in order to resolve any question concerning representation, such an election could, of course, be held only in the event the Board sa desires or all the parties consent to the holding of an election. For your further information, the Board on November 21, 1938, entered an order revoking its previous order dismissing the petition, the effect of which, of course, is that the petition is still before the Board.

With reference to the charges on XVII-C_395, I have today sent the following telegram to Mr. Eccher:

"Your charge against Alston Coal Company charging a violation of Section 8, subdivisions 1 and 2 and 3 and 5, of the National Labor Relations Act, has been duly investigated. Our investigation reveals that the case is not sufficiently strong to warrant the issuance of a complaint by this office. I must, therefore, refuse to issue a complaint in this matter. Please be informed that, pursuant to the National Labor Relations Board rules and regulations, Series 1, as amended, Article II, section 9, you may obtain a review of this action by filing a request

therefor with the National Labor Relations Board in Washington, D. C., and by filing a copy of such request with me." Very truly yours,


Icting Regional Director. We did appeal to the National Labor Relations Board, but the Board sustained the acting regional director, and the case is out, like all others that have been dismissed without a hearing after the Alston case was decided.

Mr. TOLAND. Mr. Chairman, in connection with the request made by Mr. Murdock, I read from the informal file, which is the only file that I have, a memorandum dated July 18, from Emerson to Witt:

While the provisions just quoted do not make the contract a closed-shop contract in its strict sense, they do indicate that the company is operating as a union shop, which may be considered one form of a closed shop. Between 1914 and 1931 nonunion men have been replaced with members of the United on at least fire occasions at mines operating under contract containing the above provisions, as the result of an insistence by the United that its contract was a closed-shop contract. On one of these occasions in 1930 three employees of the Alston Coal Cumpany were replaced as a result of such demand. Apparently no evidence can be obtained to show that any employer operating under a United contract containing the above provisions has ever refused to replace a nonunion employee with a United employee when requested to do so. Under these circumstances it is my opinion that we should treat the United contract as a closed-shop contract in its broader sense. If the contract is so treated, the company has not by its eonduct described therein engaged in unfair labor practices within the meaning of Sections 8 (2) and 8 (3) of the Act. We have consistently refused to consider an 8 (2) charge against one of the national labor organizations, and that charge should be disposed of without special consideration here.

There also appears this, which I will read, in addition:

I disagree. This is not a closed-shop contract, and a treatment of it as such seems to me inconsistent with such decisions as Electric Vacuum, and so forth, requiring notice to the employees.

That is initialed "A. B. H.” I think that is Mr. Hawes, is it not? Mr. Fahy. Mr. Hawes.

Mr. TOLAND. Mr. Hawes, who was assistant to Mr. Emerson. So that the record shows the disagreement between Mr. Emerson, the assistant general counsel in charge of the Review Division, and his chief assistant on whether or not it is a closed-shop contract.

Mr. HALLECK. Mr. Toland, that notice referred to, could we find out as to whether or not in some cases it has been held that as to the closed-shop situation, some notice was necessary to the employee!

Mr. TOLAND. I think the Electric Vacuum is the case referred to here. I will read it if you want me to.

Mr. HALLECK. No; I will withdraw the question, Mr. Toland. I don't know that it is competent or pertinent at this time.

Mr. TOLAND. Mr. Chairman, I have a great deal to cover with this witness.

Mr. Ozanic, would you please take up and tell the committee of your connection with the National Labor Relations Board that involves the Island Creek Coal Co., and state in detail your connection with Mr. Phillips concerning that company?

The CHAIRMAN. Let us take a recess at this time until 1:45 this afternoon. It is now 12:30.

(Whereupon, at 12:30 p. m., a recess was taken until 1: 45 p. m., this day.)


(The recess having expired, the committee reconvened the hearing at 1:45 o'clock.)

The CHAIRMAN. Mr. Ozanic, will you resume the stand. Mr. Toland, are you ready to proceed?

Mr. TOLAND. Yes; Mr. Chairman.


Mr. TOLAND. Mr. Ozanic, before we take up the Island Creek Coal Co. matter, I would like to ask you the following question: Does the Progressive represent a majority of the employees of each member of the association with whom they deal in the State of Illinois ?

Mr. Ozanic. They do; and that majority has never been questioned. Mr. TOLAND. Have they always represented a majority? Mr. OZANIC. They have. Mr. ToLand. Now, will you direct your attention to the petitions filed by your organization with the National Labor Relations Board in the Island Creek Coal Company case, and tell the committee the whole facts concerning your organization and the filing of the petition. Mr. Ozanic, will you in your testimony concerning this particular company also treat the whole general West Virginia situation?

Mr. Ozanic. I will do that.

Mr. ToLand. And take into consideration the other petitions that were filed in the Cincinnati office, if any!

Mr. OZANIC. I will be glad to. The Island Creek situation is another instance where the majority of employees employed by the Island Creek Coal Co., which has its mines operating in Logan County, W. Va., joined the Progressive Mine Workers of America by overwhelming majorities. In that case it was not a case of a mere 51 percent joining, it was a case of 98 percent severing their connections with the United Mine Workers and joining the Progressive Mine Workers, and in the case of the Island Creek Coal Co., just as in the case of the other coal operators, the notices were served on the company advising them that the majority of their employees, employed at their mines, were no longer members of the United Mine Workers and requesting that they recognize them as members of the Progressive Mine Workers and bargain with the Progressive Mine Workers as their chosen collective bargaining agents. I have here a copy of the notices, Mr. Toland, that were served on various dates.

Mr. TOLAND. Will you identify them!
Mr. OZANIC. Served on various dates on the Island Creek Coal Co.
Mr. TOLAND. Will you identify them in the record, please!
Mr. OZANIC. Yes, sir.
Mr. ToLAND. Give me the exhibit number.
Mr. OZANIC. Exhibit W-1, dated December 24, 1938.

Mr. TOLAND. I show you a copy, Mr. Ozanic, of a letter dated December 24, signed by the International Union Progressive Mine Workers of America, addressed to Mr. Mooney, superintendent of the Island Creek Coal Co., and ask you if that is a true and correct сору?

Mr. OzANIC. Yes, sir.

« PreviousContinue »