tion; that his job as foreman was to get the day's work done; that the company policy was not to discriminate, but they necessarily would have to "work within the terms of the contract." The undersigned accepts as substantially correct Deal's explanation of the one conversation and Shifflett's statement as to the others, in view of Deal's hazy denials thereof. If Deal had made the statement claimed to him in the first Stone conversation, where, in effect, he as mine foreman was charged with practically inviting the miners to walk out rather than work with the Progressive Miners, it would have been a simple matter to corroborate Stone's version by calling Miners Persinger, Kid, and Bledsoe, or any of them, all of whom Stone testified were present during the conversation. In default of his corroboration, Deal's denial is accepted as correct. The later Stone statement, also Barefield's testimony about Deal, are accepted as correct.

9. Troy Grizzell, a section foreman for respondent up to the first of the year 1939, testified that there was considerable talk about the Progressive Miners Union in respondent's mines in the early spring and summer of 1938; that the first half of August 1938 General Superintendent Morgan told a called meeting of foremen "You boys get rid of every Progressive Mine Worker you got, I don't want one on the job. I am dealing with the United Mine Workers and them only." S. H. Johnson, section foreman up to September 1, 1938, attended this meeting and corroborated Grizzell's statement in part. Several foremen, assistant foremen, or crew leaders, called by respondent, denied that Morgan made the statement credited to him. E. R. Legg, assistant mine foreman, stated that Morgan said at the meeting, "We have a contract with the United Mine Workers and we are satisfied." Legg was not sure whether Morgan mentioned the Progressives. General Mine Foreman Clint Thompson's version was that Morgan stated at the meeting he had heard rumors that the Progressives were organizing; that the company had a contract with the United and did not have to deal with the Progressives. Morgan himself testified that this was a regular monthly safety meeting; that the contract with the U. M. W. was mentioned by him; that he told the foreman it was their job to see that the terms thereof were carried out; and that they should have no dealings with the Progressive Miners. Dell Milan, vice president of the local United Mine Workers Union and chairman of the mine committee, testified that he was called into Morgan's office in August 1938 to discuss the P. M. W. by the general superintendent; that Morgan asked the committee what they were going to do about the Progressive Miners and stated that the company did not want to have anything to do with them: "didn't want to work with them and wasn't going to." Morgan admitted talking with the mine committee in August about the Progressive but could not recall the details. Morgan's admission as to the safety meeting and Milan's version of the committee conference are accepted as true. Grizzell also testified that a few days after the safety meeting General Mine Foreman Thompson showed him a list including C. W. Bowe and Eugene Shifflett and others belonging to the P. M. W. local who were slated for release; that Grizzell sent around work to the men that they better get back in the U. M. W. to protect their jobs. This was confirmed by Bowe. Thompson admitted he usually had a list of names of miners charged with infractions of rules in some way, like loading dirty coal, violating safety rules, etc.; that on the occasion stated he had such a list containing four or five names, but that he "didn't think Eugene Shiflett's name was on the list," and that nobody on the list was discharged. The undersigned accepts the partially corroborated Grizzell version of this incident, including Grizzell's admission that nobody was discharged on the list, except Shifflett.

10. In May or June 1938, there was a little trouble with the machine cuttings, which is the fine coal resulting from the mine machine cutting into the conl vein. This coal dust picturesquely described by the miners as "bug dust," is marketable, providing it is clean and free from shale or rock dust, and the miners get paid for handling it. However, if the machine cuts too close to the rock or shale so that the rock and shale dust becomes intermingled with the coal dust, it is dirty coal dust, is unmarketable and the miners are required to discard or “gob" same without any compensation therefor. Dissatisfaction of the respondent with the cleanliness and marketability of this "bug dust" was called to the attention of the U. M. W. at a local union meeting and a committee from the Union was sent through all the mines to investigate and see if the dust could not be cut so it could be sold. This investigation was with the

4 Grizzell testified that as section foreman he had authority to discharge but not to bire.

full knowledge and consent of respondent, who in fact fully cooperated therein with the committee. This committee found some of the dust dirty as claimed and instructed the miners concerned that under the terms of the contract the U. M. W. had with respondent, the miners were required to produce clean "bug dust" in order to entitle them to be paid for same, otherwise it would have to be "gobbed" without compensation. No further complaints were had and the men continued to collect pay for handling the "bug dust." The evidence is undisputed that this U. M. W. committee, made up of the president of the local and several district field men, took advantage of the opportunity presented by this investigation to canvass all the miners they could contact in the mines' to get them to sign up with the U. M. W. For that purpose the committee members came into the mines well supplied with application cards and even those miners known to have previously joined the U. M. W. were solicited and asked to re-sign cards, the admitted purpose being to secure affirmation or reaffirmation of allegiance by the miners to the U. M. W. as a check against the claimed inroads among respondent's miners of the Progressive Mine Workers local organization.

11. The complaining Union insists that the "bug dust" grievance was fictional and merely a paper grievance set up by the respondent and the United Mine Workers as an excuse to give the mine committee entree to the mines and opportunity to canvass the miners and bring pressure on them to sign up with the United Mine Workers. The evidence is quite convincing that there was some merit to the "bug dust" controversy as claimed by respondent and the U. M. W., but that the opportunity presented was seized upon by the United Mine Workers with the knowledge and approbation of respondent to solicit all miners contacted so that the Union could consolidate its position in the mines; that as a result of these activities, at least some of the miners who had no personal enthusiasm for the United Mine Workers, decided it was advisable to sign up with that organization as a matter of policy and to protect their jobs with respondent.

6

12. Lawrence Taylor claimed that his conveyor boss, Bill Buff, on August 22. 1938, stopped the conveyor during working hours and stated that if anyone there belonged to the Progressive Mine Workers, they better get out as otherwise they were "going down the road." Taylor was corroborated by Ed Hundley who stated to Eugene Shifflett the same day, "you Progressives are going to be fired." Buff denied the statement. A. J. Alderman testified that Buff told him in September 1938 that the bosses had instructions to disqualify the men who belonged to the Progressive, "that is, discharge them or make it so tough on them they couldn't stay." It seems clear from the evidence that Buff did make substantially the statements with which he was credited. However, the conveyor foreman, while in charge of the conveyor machine and its crew of four or five, had no authority to hire or fire, and as a matter of fact works right along with the crew. The evidence shows that no Progressive miners as such were discharged except Eugene Shifflett.

13. One employee by the name of Seacrist testified he was with a group of men in August or September after he had been discharged. It was stated by one of the employees in the presence of George Tucker, another conveyor foreman, that Seacrist was fired because he was a member of the Progressives. Tucker stated that he did not know whether Seacrist had been fired for talking for the Progressives or not, but "if you go back to work I would advise you to keep still." Tucker, in effect, admitted this conversation.

14. Cecil Woodrum stated that Assistant Mine Foreman Paul Gregory advised him in the fall of 1938 to stay away from the Progressives as they were liable to get him in trouble. Gregory denied this statement. The undersigned accepts the statements credited to both Tucker and Gregory as substantially correct. Woodrum admitted that he still belongs to the Progressive and has had no trouble about his job.

D. The discriminatory discharge

15. The complaint alleged that Eugene Shifflett was discharged by respondent August 23, 1938, and has since been refused reinstatement because he joined and assisted the P. M. W. Respondent denied the discharge and alleged Shifflett

Under the terms of the contract, the mine committee had no right to enter the mines for any cause whatsoever except to investigate a grievance.

Interpreted as meaning a discharge.

was laid off because there was no work available that he was capable of performing to the satisfaction of respondent. The evidence shows that Shifflett worked for respondent from 1922 to 1924 when he went out on a strike called by the United Mine Workers, of which he was a member and local officer. After the strike had been broken in April 1926, he was unable to get a job with respondent as they refused to hire anyone previously connected in an official capacity with the United Mine Workers, but in August of that year Shifflett did get back working for respondent. From then on he held numerous jobs in the mine until the strike of 1931 called by the Virginia Mine Workers, an offshoot of the United Mine Workers, of which he was also a member. The record is indefiniate as to the length of this strike or its success, but it appears that in 1934 Shifflett got back on respondent's pay roll again as a coal loader. Next he ran a motor for six weeks, when he asked for and was given the job of trackman at No. 4 mine, which he held until the mine shut down in 1936, except for two and a half months when he ran another motor. He stayed on at No. 4 mine five months after the shut-down tearing up track and doing other clean-up work. He was then transferred to Cedar Grove to run a pump. As this was night work, he asked for a change and was sent up to No. 1 mine picking up coal at a test hole. Next he took out wire and machinery from the mines. He dug foundations for tipples with a crew, but quit one day in 1937 at 3 o'clock p. m. because the miners' shift was coming out and he refused to work longer than the 7 hours required for miners under the contract. At the time he was doing outside work which called for 8 hours under the contract, according to management, although this was disputed by Shifflett. As a result he was let out for two months, but was reinstated in September 1937 through the efforts of Stanley Deal, mine foreman of No. 1 mine. Shifflet shot slate for six weeks and shot roadway for an equal period. He worked in Superintendent Pauley's regular slate crew and later had charge of the belt on the automatic stopper. He worked on a conveyor machine, but was transferred from that crew because of poor coal production to a floating job, and then to work leveling up another conveyor. Then he was put on an experimental double-chain conveyor, where he worked until August 15, 1938, and at that time it was decided to remove the experimental conveyor. Shifflett helped to take the conveyor down and load it for shipment. It was taken to mine No. 2, and Shifflett was instructed to report at that mine and take charge of setting up and installing the headpiece. He worked three days with the crew and finished installing the headpiece, when he was sent back to No. 1 mine. At No. 1 mine he was told by Stanley Deal there was no work for him for the present. He appealed to Superintendent Pauley and was encouraged to take another job, as there was no work for him with respondent. The evidence shows that Pauley left respondent's employment the first of the year 1939. The previous fall he advised Shifflett to talk about getting back to work with General Superintendent Morgan. Shifflett did see Morgan, but the latter refused to intercede on his behalf, saying that it was "up to the foreman." Shifflett has not worked since his release. He applied for unemployment insurance. On the first separation slip furnished the West Virginia unemployment compensation office by respondent, the report given for Shifflet's separation from service was that he was discharged. A month later, about the first of September, this was changed by an amended separation slip showing "no work available."

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16. It is quite clear from the record in this case that Shifflett was experienced and versatile in mine work. He seems to have been transferred from one job to another in respondent's mine throughout the past several years with amazing regularity, sometimes because the job was finished, on one occasion because of poor production on his part, on several occasions at his own request, but in several instances by request of the management. Stanley Deal, foreman who knew Shifflett for years, testified the latter was not dependable or satisfactory, as evidenced by his moving around so much. Apparently that attitude toward Shifflett has only been controlling with respondent since August 1938, as Foreman Deal admitted he secured Shifflett's reinstatement a year before after the latter's discharge for refusing to work beyond 7 hours a day.

17. With the exception of the time out for two strikes, Shifflett worked with respondent with considerable regularity, beginning in 1922 and up to the middle of August 1938. On occasions he was given work requiring extra dependability and experience. This was true of the very last job he was called on to do-the

There is dispute as to whether he was instructed to install the conveyor or only the headpiece. Respondent Exhibits 4 and 5.

218054-40-vol. 2-13

installation of the headpiece on the double chain experimental conveyor. Whether his release from employment in August 1938 is labeled as a discharge or a lay-off is unimportant. The facts are that Shifflett has not had work since that time, because respondent refused to give him work, although it had work to be done that Shifflett could do and had done before, and hired other men instead. In the light of all these facts, the undersigned interprets respondent's claim that this other work could not be done to its satisfaction by Shifflett as meaning that respondent has not put Shifflet to work because he is a “disturbing influence" among the miners, as testified to by Foreman Stanley Deal.

18. Shifflett is not a placid type of workman. For at least 17 years, and probably longer, he has been a loyal, aggressive, and argumentative union worker. Up to around 1932, he worked on behalf of the United Mine Workers. After that he switched his allegiance to the Progressive Mine Workers, and it was largely through his efforts that a local P. M. W. union was installed in respondent's plant in the summer of 1938; and he was elected its president. The activities of Shifflett and the local P. M. W. union and its claim of membership among respondent's employees caused the U. M. W. leaders and officers deep concern. Steps were taken by them to counteract the influence of this invading union, even to the extent of breaking up at least one P. M. W. sponsored meeting in the summer of 1938.

19. There is evidence of a meeting of delegates from all the local U. M. W. unions in District No. 17, called at the courthouse in Charleston, West Virginia, at which meeting the activities of the P. M. W. were gone into at considerable length. There is no evidence whatsoever to indicate that respondent had anything to do with this meeting or with breaking up the P. M. W. meeting above referred to, but respondent did know and offered no hindrance nor discouragement to the solicitation of its employees on company time by the Mine Committee during the "Bug Dust" investigation. Respondent during this same period made it plain to its employees that the activities of the Progressive Mine Workers and its members was regarded as an alien and disturbing influence, and would not be tolerated insofar as it might affect the contract existing between the respondent and the United Mine Workers, as construed and applied by respondent and intervenor. There is ample evidence, that, as the outstanding personification of this disturbing influence, Eugene Shifflett was discharged in August 1938 by respondent, and has since been refused reinstatement.

20. This is a clear-cut case of discrimination unless the contract existing between respondent and the United Mine Workers brings the case within the exemption of Section 8 (3) of the Act. The undersigned is of the opinion that the contract as written does not come within this exemption because by its terms it is not a closed shop contract. The fact that the contract is interpreted and applied by the United Mine Workers and by the respondent as a closedshop contract does not bring it within this exemption. Contracts necessarily are construed by the courts and by administrative agencies according to their plain terms, especially where there is no ambiguity. It is not claimed or even suggested that there is ambiguity in the contract involved in this proceeding. Certainly the provisions of the contract are clear and unequivocal. Neither is it contended that the terms of the contract have been changed by a supplemental oral contract, or otherwise. The exemption in Section 8 (3) of the Act is: "... that nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein Shifflett admittedly was a member (although an unwilling member) of the U. M. W. at the time of his discharge. The allegation in the complaint, substantiated by competent evidence adduced at the hearing is that he was discharged, not because he refused to join, or was not a member of the U. M. W., but because he joined and assisted the P. M. W. (while a member apparently in good standing of the U. M. W.)* Even assuming a closed-shop contract in the present case there is still a violation of the Act, in the opinion of the undersigned. The exemption in Section 8 (3) protects an employer for requiring membership in the union signatory to the closed-shop contract. It would be a strained construction of the exemption to say it went beyond that and permitted the employer to dictate with impunity all other union activities or affiliations of its employees.

Intervenor Exhibit 1, the constitution of United Mine Workers of America, provides membership in another union automatically forfeits the membership in the United Mine Workers. The record discloses no action taken by the U. M. W. in this respect so far as Shiflett is concerned. In fact, the intervenor, in its pleading and proof, claimed Shifflett, was a member of its organization.

IV. INTERSTATE COMMERCE

21. The Kelley's Creek Colliery Company owns and leases 7,000 acres of coal land in Kanawha County, West Virginia, which it is actively mining at the present time. The daily average production of the mines of respondent is approximately 4,000 tons of coal, 70 percent of which is shipped outside the State of West Virginia. Respondent sells its coal f. o. b. the mines, Ward, West Virginia. A railroad known as the Kelley's Creek & Northwestern Railroad, the stock of which railroad is owned by respondent, connects with the main track of the New York Central Railroad and shipments of coal are generally made by this carrier to points outside the State of West Virginia. The Kelley's Creek and Northwestern Railroad extends to the Kanawha River where there is a large tipple from which point coal is loaded from the railroad on barges and shipped by boat to points within the State of West Virginia. As of February 9, 1939, there were approximately 800 employees of respondent. The respondent in its answer admitted that it is now and has been at all times mentioned in the complaint, engaged in interstate commerce.

CONCLUSIONS AND RECOMMENDATIONS

Upon the basis of the foregoing findings of fact, the undersigned concludes: 1. Respondent by discharging and refusing to reemploy Eugene Shifflett and thus discouraging membership in a labor organization known as the International Union of Progressive Mine Workers of America, and by interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as set forth in the above findings of fact, has engaged in and is engaging in an unfair labor practice affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act.

2. Respondent, by discharging and refusing to reemploy Eugene Shifflett as set forth in the above finding of fact, has engaged in and is engaging in an unfair labor practice affecting commerce within meaning of Section 8 (3) and Section 2 (6) and (7) of the National Labor Relations Act.

WHEREFORE, the undersigned recommends that:

1. Respondent cease and desist from interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the International Union of Progressive Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.

2. Respondent cease and desist from discouraging membership in the International Association of Progressive Mine Workers of America, or another labor organization, by discrimination in regard to hire or tenure of employment or condition of employment.

3. In order to effectuate the policies of the Act, respondent take the following affirmative action:

(a) Offer to Eugene Shifflett immediate and full reinstatement to his former position without prejudice to his seniority and other rights and privileges; (b) Make whole the said Eugene Shifflett for any losses of pay he may have suffered by reason of respondent's discrimination in regard to his hire or tenure of employment, by payment to him of money equal to that which he would have earned as wages during the period from the date of such discharge to the offer of reinstatement less his net earnings during said period;

(c) Post immediately in conspicuous places in its various mines at Ward, West Virginia, and maintain for a period of at least sixty (60) consecutive days, notices to its employees stating that respondent will cease and desist in the manner aforesaid;

(d) File with the Regional Director for the Ninth Region, on or before ten (10) days from the receipt of this Intermediate Report, a report in writing, setting forth in detail the manner and form in which it has complied with the foregoing requirements.

It is further recommended that unless on or before ten (10) days from the receipt of the Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the matter be referred forthwith to the National Labor Relations Board and that said Board issue an order requiring respondent to take the action aforesaid.