THE LABOR ORGANIZATIONS INVOLVED

International Union, Progressive Mine Workers of America, affiliated with the American Federation of Labor, filed the petitions and charges in all these cases. It was formed as an independent union in the State of Illinois on September 1, 1932. In 1937 it became a Federal Union of the American Federation of Labor, and in April 1938, was chartered by the American Federation of Labor as an International Union. The locals involved in these cases are all members of District No. 2 of the Progressive Mine Workers of America.

International Union, United Mine Workers of America, affiliated with the Congress of Industrial Organizations, District No. 17, is a labor organization chartered by International Union, United Mine Workers of America. Contracts have been entered into by companies involved in these cases with District No. 17, United Mine Workers of America.

THE APPROPRIATE UNIT

The progressive Mine Workers contend in all these cases that each individual mine constitutes a separate bargaining unit. The United Mine Workers claim that the employees, excluding supervisory help, of the members of each Operators Association constitute a unit appropriate for the purposes of collective bargaining. Apparently the employers agree with the contention of the United Mine Workers as, with the exception of Carter Coal Company, they make contracts on that basis and whenever spoken to have stated that they feel that United Mine Workers unit is appropriate.

THE QUESTION CONCERNING REPRESENTATION

On March 30, 1939, just prior to the expiration of the Appalachian Wage Agreement running from 1937 to 1939, the Progressive Mine Workers notified the companies involved in these cases that they had a majority of the employees at their individual mines and that they wished to bargain collectively with them. (Copy of this letter is attached to this report.) Upon receiving no reply, a second letter was written stating that they represented a majority of the employees at the companies' individual mines and that under the National Labor Relations Act the company was obligated to bargain with them. These letters likewise remain unanswered. (Copies of these letters are attached hereto, also.)

If the unit claimed by the Progressives were clearly right, the case would be one which would be subject to an 8(5) complaint. Because of the obvious doubt as to the validity of the unit claimed by the Progressives, there is a question of representation rather than a possible violation of the Act. It is also possible that the majority is in doubt. The claim of the United Mine workers as to unit as set forth above also raises the question.

It should be noted that in the case of the Carter Coal Company neither the nnit nor the representation question is the same as exists in the other cases. While the president of the Carter Coal Company participated in the New York conferences between the Coal Operators Associations and the United Mine Workers, the company was not a member of any of these associations, and withdrew from the negotiations when the closed shop issue arose. At the present time the Carter Coal Company is not a member of any Coal Operators Association. It should be further noted that it is not absolutely unusual for a large coal company not to be a member of an association in the southern West Virginia field. Customarily they are, but there are notable exceptions. See, for example, Matter of McKell Coal and Coke Company, 4 N. L. R. B. 70, and the present Elk River Coal and Lumber Company, IX-R-286, where a trial is now in progress. It should also be noted that the captive mines do not belong. Similar questions have also been raised in other coal fields of the country, see, for example, Matter of U. S. Coal and Coke Company, 3 N. L. R. B. 37, 37a, Wisc. Steel, IX-R-307, Southern Mining Company, IX-R-309. It is also interesting to note that the Carter case resembles on all fours these particular cases, and not the Island Creek, et al.

DETERMINATION OF REPRESENTATIVES

In discussing any claim of representatives it must be borne in mind that in April of 1939 there was a complete stoppage of work in the West Virginia coal

fields, that later, as will be more explicity set forth below, a contract was signed between the United Mine Workers and the various Coal Operators Associations, as well as between the United Mine Workers and Carter Coal Company, providing for a closed shop. It is obvious that at present the United Mine Workers would have a majority of the workers in each of the individual mines as well as in the field because of the closed shop, but ipso facto, if the unit were wrong and there should have been bargaining with the Progressives, the closed shop would be ineffective and should not for that reason bar the Progressive Mine Workers from their petition. Nor does the present contract serve as a bar since the issue was raised before a new contract was signed or negotiated. We will treat the membership, therefore, as of three distinct periods: (1) at the time when the Progressives filed their first petition, (2) at the time of the stoppage, and (3) after the new Appalachian Wage Agreement was signed.

Island Creek Coal Company IX-R-290

At the time the Progressive Mine Workers filed their petition in this case, they contended 260 employees were working at Mine No. 21. The company, in a letter of a later date, stated that the average employment at the mine during the first three months of 1939 was 337. In July of 1939 the union presented 162 membership cards signed between August 1938 and March 1939, in support of their petition.

IX-R-291. In its petition the Progressives claim that the company employed approximately 220 men at its No. 20 mine at the time their petition was filed. According to the company records, the average employment for the first quarter of the year at its mine was 316. In July the union presented 216 membership cards signed between September 1938 and April 1939 to the Board's examiner. This is, of course, a clear majority.

IX-R-295. At the time the Progressives filed the petition they contended that the company employed approximately 440 men at its No. 1 mine. The company's records indicated that the average employment during the first quarter of the year at the No. 1 mine was 339. One hundred and fifty-seven membership cards, dated between August 1938 and early 1939, were offered to the Board's examiner for inspection in July.

IX-R-299. The union contended that the company employed 293 men at its No. 14 mine at the time it filed its petition. According to the company records, the average employment for the first quarter of the year was 365. Early in July 1939 the union presented 126 cards signed between August 1938 andApril 1939 to the Board's examiner for inspection.

It is apparent that in Cases IX-R-290, 295, and 299, the union did not have a clear majority but they did have substantial membership and could logically raise the issue of representation. It should be noted further that these cards were signed for the most part prior to the stoppage.

On April 1, 1939, when no new wage agreement had been negotiated between the United Mine Workers and the Coal Operators, work at the Island Creek mines stopped, as it did in all the coal fields in southern West Virginia. Operations were not resumed until after May 12, 1939, when the new Appalachian Agreement was signed. During this time, in the limited way possible, the United Mine Workers gave relief and assistance to the coal miners out of work. From this it is apparent that the United Mine Workers represented the men during the stoppage.

The new Appalachian Agreement, which was signed in May 1939, provided that as a condition of employment all employees shall be members of the United Mine Workers of America. The Island Creek Company has enforced this provision of the contract and at the present time all of its employees are members of the United Mine Workers.

Wyatt Coal Company. IX-R-284

In their petition in this case the Progressive Mine Workers stated that 260 men were employed by the company at its Sharon mine. The company stated at a later date that approximately 285 employees were at work in this mine. In July the union representatives presented 158 cards, most of which were signed in the middle of 1938, although a few were signed in 1939. Each of these cards had attached to it a signed withdrawal from the United Mine Workers of America and a notice to the company to stop checking dues for the United Mine Workers. The latter, however, were never sent to the company or to the United. It is thus clear

that the Progressives had a clear majority at this mine at the time they filed their petition. The Wyatt mines were closed down on April 1 and remained closed until May 15, when the new Appalachian Agreement went into effect. While they remained closed the United Mine Workers picketed and gave some relief and financial assistance to the men on strike. Apparently the United Mine Workers were the representatives of the employees at this period.

After the new Appalachian was signed all the men joined the United Mine Workers in conformity with the closed-shop provision of the new agreement.

Carter Coal Company. IX-C-954

In their "petition" the Progressive Mine Workers state the company employs approximately 2,800 men. They claim to have 2,000 signed application cards, but at the time the Board's examiner asked to see them in Charleston, West Virginia, he was told they were in the possession of Mr. Ozanic, who had just returned from a conference with Mr. Carter, in which he had presented them. These cards had never been returned to Charleston for examination by our Regional Office.

On May 15, 1939, when the new Appalachian Agreement went into effect, the Carter Coal Company employees remained on strike because this company refused to accept it. United Mine Worker pickets were stationed around all the Carter mines, and on several occasions work notices were posted by the company, but work was not resumed. It was not until an understanding was reached with United Mine Workers that the pickets were withdrawn and work resumed. It is quite apparent that the United Mine Workers represented the men at this mine during the stoppage.

OTHER MATERIAL

Island Creek Coal Company is a member of the Logan Coal Operators' Association. Wyatt Coal Company and Kelley's Creek are members of the Kanawha Coal Operators' Association. Carter Coal Company is in an anomalous position in that Carter, according to both the secretary of the Kanawha Operators' Association and vice president of District 19 of the United Mine Workers, is not now a member of any operators' association. It is not clear as to Carter's exact relationship prior to the recent wage negotiations. Mr. Carter, president of the company, acted as negotiator for the Pocahontas Operators' Association during the May 1937 negotiations, but withdrew when the union shop became the sole issue between the parties.

The operators' associations are, roughly speaking, associations of operators located within a particular geographical area generally comprising a particular county. At times they may run a bit larger than this. Each operators' association annually elects a board of directors, who automatically serve as the negotiating committee representing all the members of the association. These delegates appoint one or two of their members to attend the so-called biannual Wage Conference in New York City. These latter are called scale committeemen. At the New York meeting the general Appalachian Agreement is negotiated. The scale committeemen then return to their respective locations and negotiate an agreement covering the members of the association and the United Mine Workers for the particular region covered by the operators' association. However, it should be noted that the field agreements always incorporate as part thereof the Appalachian Agreement itself. It was agreed in New York in the 1939 negotiations that there should be no change in any of the individual district agreements. There are instances where more than one local operators' association will meet jointly with the United Mine Workers and execute a local contract; for example, the "Smokeless Districts"; but these agreements do not concern us here. It is interesting to know, however, that while the operators' associations may meet jointly, the agreement is signed individually by each operators' association. This collective bargaining has several years' standing behind it.

Attached hereto are copies of all the present agreements applicable to the files involved, together with other specimens. We have sent you previously some of the older agreements and have no more available. I assume if they are necessary for your consideration copies could be procured from the main office of United Mine Workers in Washington.

The employees, of course, have a correlative system to that of the employers. The United Mine Workers has its base local unions whose jurisdiction is extensive with an individual mine. The locals, however, are all affiliated with a district. The district itself as a rule is larger than the territory covered by an operators' association. Each local of the Mine Workers within an operators'

association district elects a delegate to a convention of the district for the selection of scale committeemen, as far as it pertains to the operators associations. This convention elects two delegates, one of whom goes to New York to the convention described above; the other's function is to negotiate when the particular district agreement is made. It should also be noted that certain international officials of the various United Mine Workers District are also ex officio members of the semiannual wage conference in New York. This, in effect, means that the agreement, once negotiated by the New York or district conferences, never has to go back to the locals or to the members of the operators association. Once the agreement is signed by the negotiating committee, it is binding on all parties. It should be noted that the Appalachian Agreement itself is signed first by the United Mine Workers of America, by its international officials, and then by the presidents of the various districts concerned. Each operators' association also signed the Appalachian Agreement by its sundry and diverse officials. The appalachian Agreement itself is an agreement between the various associations and the international union and its districts. The district agreements themselves, always negotiated after the Appalachian Agreement, and the Appalachian Agreement, as I said before, is made a part of the district agreement, are negotiated by the operators' association and the particular district of the United Mine Workers involved therein.

The only constitution of any of the operators associations we have been able to obtain is the Kanawha, on loan (it is attached hereto). They are kept very secretively. We are assured by the secretary of the Kanawha Association that constitutions are all very similar. This is our only copy, and after it has served its purpose we would appreciate its return. The secretaries of the other associations assure us that there is a provision binding all members of the operators association to the contracts as ultimately negotiated and that the only way for a member to "get out from under" is to resign from the association. It is interesting to note, however, that the operators have some gentlemen's understanding that no agreement will be made by the association which is not agreeable to all members. You will note that this was the sticking point in the last negotiations in New York City, where the overwhelming majority of the operators were willing to sign the closed shop agreement demanded by the United Mine Workers but refused to do so because certain of the operators did not wish to thus commit themselves.

This year's contracts, of course, were in a certain sense exceptions to the general rule. Just exactly what transpired at the New York negotiations is pretty hard to ascertain. There were only eight men present at the final negotiations. The best that can be made out of it is this; that certain associations agreed to the closed shop and signed an agreement similar to that described above. The Logan Operators Association, of which the Island Creek Coal Company is a member, was in this category. The Kanawha Operators Association, to which Wyatt Coal and Kelley's Creek belong, could not agree on the closed shop at first and the operators association, according to Vice President Blizzard, permitted individual members of the Operators Association to sign individual argeements with the United Mine Workers. Two days later, however, the Kanawha Operators Association met and negotiated an agreement for all its members, which agreement covered those who had previously signed and those who had not done so. It is interesting to note that the district agreement was the same agreement that the individual companies had signed.

In this connection it should also be borne in mind that where the United Mine Workers has bargained with an individual company it is always provided that no more favorable terms will be given to a company within the district than is given to the signing company and that in the event any more favorable terms should be given, they automatically are made part of all the contracts in the district. It seems to me that this feature alone emphasizes the close homogeneity of the mines in the district and their interdependence as far as wages, hours, and working conditions are concerned. I might point out that even in Harlan County, where the United Mine Workers at the outset would normally have been willing to go to any extreme to get a contract with an individual operator, they refused to vary this particular clause and insisted that a contract similar to that proposed in New York be given so that the entire field could be kept more or less in line with the entire country. It should also be noted that Carter. after withdrawing from the New York conferences, remained adamant and refused to join up with the Operators Association. However, about five months ago it signed an individual contract with the United Mine Workers in the exact same terms as the district agreement.

In each field there is a very complete machinery set-up for the settlement of grievances. I quote a typical provision, for instance, from a Kanawha District Agreement:

SETTLEMENT OF DISPUTES

Should differences arise between the Mine Workers and the Operators as to the meaning and application of the provisions of this Agreement, or should differences arise about matters not specifically mentioned in this Agreement, or should any local trouble of any kind arise at any time, there shall be no suspension of work on account of such differences, but an earnest effort shall be made to settle such differences immediately:

First, between the aggrieved party and the mine management.

Second, through the management of the mine and the Mine Committee. Third, by an intermediate board consisting of two members, one representing the Operators and one representing the Union Mine Workers of America.

Fourth, by a Board consisting of four members, two of whom shall be designated by the Mine Workers and two by the Operators, this Board meeting to be convened within five days after an agreed statement of facts is arrived at.

Should the Board fail to agree, the matter shall be referred to an umpire selected by said Board. Should the Board be unable to agree on the selection of an umpire, he shall be designated by the International President of the United Mine Workers of America and the President of the Operators' Association affected. The decision of the umpire in any event shall be final.

Pending the hearing of disputes the Mine Workers shall not cease work because of any disputes, and a decision reached at any stage of the proceedings shall be binding on both parties thereto, and shall not be subject to reopening by any other party or branch of either association except by mutual agreement.

Expense and salary incident to the service of an umpire shall be paid jointly by the Operators and Mine Workers in each district.

Note that the decision of the Operators Association is binding on its members. You will also find available in the library of the United Mine Workers copies of many decisions from various district boards. As a matter of fact, they are cited as precedents and the decisions on disputes are very frequently made part of the next year's agreement when it is made. It is not a hapazardly worked out arrangement but something fixed and permanent to insure industrial peace within the district. You may recall that when the Harlem dispute was settled one of those joint committees was set up to administer an apportionment of the discrimination cases.

We set forth in this section all facts which we consider relevent other than those set forth under the standardized headings above which will assist the Board in determining whether or not the Alston case is applicable, if they feel that matters of this sort should be determined on precedent without a hearing.

COMMENTS

In order that all material in this case can, as suggested, be in one place, I will repeat the history so far as this office is concerned, of the West Virginia disputes. In October 1938 there was pending an "R" and a "C" case against Kelley's Creek Colliery Company. This was frankly filed as a test suit and the Progressives made no bones about the fact that it was filed as their test case. At that time, as far as this office was concerned, and as far as the Progressives in West Virginia were concerned, there was no Alston coal situation. In conferences with the Progressive Mine Workers representatives they agreed that the "C" case should be subordinate to an "R" case in which they were primarily interested, and I so notified you. Later in the same month, in conference with the local United Mine Workers representatives, we were able to persuade them that an "R" hearing would not adversely affect their interests but would go far to clear up the exact status of coal long before it was necessary to have any further bargaining negotiations. We understand that their superiors in Washington presented their views to the Board, but at least the local representatives express satisfaction at our plan to try out the issue in Kelley's Creek.

At that time I urged that an "R" hearing was the only satisfactory solution to the impending turmoil in the southern West Virginia coal fields. In my memorandum of October 20, in the last paragraph, I stated: "It seems to me that the contention of the Mine Workers that the field constitutes a unit could easily be sustained. I don't feel that the contention of the Mine Workers is any reason not to have a hearing; in fact, I feel it points strongly to the necessity for having