Discrimination. I regret that I cannot concur with Mr. Grossman that there is no evidence that the discharged employees were discriminated against. His statement that "6 were discharged along with 22 others, 12 of whom were never recalled after the old management ceased operation in August, 1938, and the other 10 were laid off after the new management commenced operation", is correct, but it seems irrelevant to the issues in this case. Twelve of these were never recalled when the plant reopened in the autumn of the year. At that time no union was in the picture. That leaves us with a total of 16 men that were discharged from the time the new management began to operate. Of these 16, 3 were discharged before the union even began to organize and at least a month before the company began to work overtime. That brings us to 13 employees who were disharged after the union began to organize and at least in the middle of November, 1938. Of these 13, 3 were rehired, leaving a total of 10 still unemployed. Of these 10, 8 were union members and the charges are concerned with these 8. (It might be worth noting that of the remaining 2 employees, one was later called back and he was nonunion. The other was also a non-union man, but nothing has been heard of him.) Immediately after the dismissal of these employees, the company began to work all the remaining employees overtime and did so for the remainder of the year. I cannot agree that the defense offered by the company, that it was more economical to operate the plant on an overtime basis, is logical or sound. It is true that the company offered in statement No. 3, an argument that because of its continuous operations it was more economical to work the men overtime; however, I find it impossible to follow the logic of its argument. It contends that it would have been necessary to hire 60 men for 190 hours per month to do the work. It offers no proof of why 60 men were necessary, nor does it in any way indicate why the 8 men could not have continued in its employment. If it were a question of hiring 60 men, instead of 8, and working these 60 the regular number of hours, something could be said for the company's argument. It further should be noted that after settlement conferences with Mr. Perricelli, the company managed to reinstate 6 of these men and continue the same schedule of operations. However, since 6 of the 8 employees have been reinstated, the issue of discrimination centers now on Henry Ellis and Charles W. Fisher. There is little argument about Fisher's case. The evidence does not substantiate the charge that he was discriminated against, but it should be borne in mind that Fisher was very active in the union immediately prior to his dismissal. The case of Henry Ellis is by no means as simple. At the outset it should be noted that there is every reason to believe that Mr. Pierce knew of Ellis' criminal record long before he took over the operations of the company In fact, Ellis had served his term six years before his dismissal. Pierce was aware of this, but nonetheless he allowed Ellis to work at his home when he was not needed at the plant. There is every reason to believe that the reference made to Ellis' "name" did not concern his prison term, but to his brother who had been the superintendent under the Spangler administration of the company. When Mr. Pierce took over, Spangler and Ellis were discharged and Ellis states that when Hill, the superintendent, referred to his name in an unfavorable way, he was afraid he might lose his job because of his brother's connection with the ousted management. In contrast to this, we have the fact that Ellis was given a position of a straw boss by this new administration and that he was promised a better job if he would keep the superintendent posted of the developments in the union. Furthermore, in one of the settlement conferences, Mr. Pierce stated that all those who received Christmas bonuses would probably be eligible to return to work. Ellis received a Christmas bonus. I agree that the Ellis case is not a clear-cut one, but I cannot agree that the company's defense seems meritorious. The Lockout. In the conference on January 13 with the union, the company indicated that the future of the Barium Company was uncertain. Among the possibilities mentioned was the one that the company would not continue to operate its South Charleston plant, but nothing definite was stated and it was clear from the remarks that were made that a decision would not be made immediately. Furthermore, the company's position that it reopened its plant because of the negotiations with the Carbide & Carbon Chemicals Company fell through, is not accurate. The only deal of which we have ever been informed had been announced in the newspaper on January 12th and that deal has been completed. The company was fully aware of this deal at the time it negotiated with the union and the Board Examiner on January 13th, and if it had intended to close its plant, it could announced it at this conference. We are thus left with the most suspicious of events and a company defense which is by no means consistent. ported on this point at some length in my previous report. Company Dominated Union. Mr. Grossman and I are in complete accord on this point. Refusal to Bargain. I have The issue here rests solely on whether or not we are able to prove a lock If we can prove a lock-out, we are driven to the inevitable conclusion tha union's majority was dissipated as the result of an unfair labor practice an ordinary Board remedy would require the company to bargain with the union. of course assumes that the union had a majority prior to the lock-out. January 13th settlement conference the union offered to turn its membe cards over to the field examiner for a comparison with the payroll of the com to prove its majority. I have been assured by the union that it had a ma of the employees signed at that time and I saw some 70 cards. Of course, not vouch for the veracity of the signatures. COMMENTS I do not minimize the many difficulties we face in this case. Our wit are hostile. This in itself makes the case difficult, but in addition it rais question of how we could put in our case if we decided to proceed. Nonet it seems self-evident that a prima facie case exists and a prima facie case most flagrant kind. There is no more vicious weapon other than the use of thugs that can be used to destroy unionism than the lock-out. Lock-ou never be clearly proved, but can only be inferred from a chain of even: seems to me that the question is whether or not the inferences are suc reasonable men acquainted with the history and characteristics of labor re can conclude that the events here recited constituted a lock-out. I belie answer is in the affirmative. I have reviewed the files in the above-entitled case and recommend th decline to issue a complaint, with the usual notice to the union of its ri appeal to the Board as provided for in Article II, Section 9 of the Ruk Regulations. LABOR RELATIONS HISTORY The files reveal that after some litigation between the officials of the co herein involved, the company came under the supervision of one J. B.) the present head of the company, on September 28, 1938. From that ti Pierce has instituted new policies in all fields of company operation, inc labor relations. Therefore, for all practical purposes, the labor relations t of the company dates from September 28, 1938. Discrimination. The charges filed by the union allege the discriminatory discharge b company of eight employees. Since the filing of the charges, and as a res numerous conferences, six of the eight employees have been reinstated. the two remaining, namely, Henry Ellis and Charles Fisher, Fisher's c totally without merit (Wagner in accord). The charge of Ellis, likewise, doe indicate that his employment with the company was terminated because of i activities. On the contrary, the company's defense seems meritorious. It ap that in November, 1938, two months after the beginning of operations by the management, it was discovered by Pierce that Ellis had a previous cri record. It also appears that when Ellis was asked to come to work for the new management he had been promised by Superintendent Hill that he would try to keep him on and that his "name" would not affect his job. Apparently Ellis' criminal record was a matter of concern to the superintendent at the time of Ellis' first employment by the new management, but the superintendent preferred to risk hiring him in the hope that his criminal record would not be discovered. There is some evidence that the superintendent made anti-union remarks to Ellis and encouraged him in some labor espionage work, but very little of this evidence is substantial and certainly not enough upon which to base a finding of discharge for union activities. The The question of back pay for the six men reinstated is still an open one. files disclose that there have been negotiations on the subject but that the company now has decided to withdraw from any further negotiations in the matter. The company's position leads any further to the conclusion that these men were not discharged for union activities. The six were discharged along with twentytwo others, twelve of whom were never recalled after the old management ceased operating in August 1938, and the other ten were laid off after the new management commenced operation. There is no evidence that any of the other twentytwo discharged employees were union men. On the contrary there is considerable evidence that the company, in effecting economies, was compelled to terminate the employment of a number of its employees in order to effect financial economies. There is a contention by the union that immediately after the discharge of the eight employees mentioned in the charge, the company operated its plant on an overtime basis, and the union infers that such overtime operations should probably have been the work of the discharged employees. However, the defense evidence offered by the company to this charge indicates that immediately after the discharge of these employees the volume of the company's business increased approximately 55 per cent, and since the increase was construed as only a temporary up-turn in business and because of the continuous nature of the operations at the plant, it was more economical to operate the plant on an overtime basis than it would have been to offer employment to the employees who were discharged. The statistical figures offered by the company in support of this last statement bear out its contention. Therefore, it is my opinion that it would be difficult to establish that the six employees now reinstated are entitled to back pay. The Lockout. I doubt that we could offer sufficient evidence to sustain any finding of a lockout in this case on the basis of a two-day termination of operations, on January 17 to January 19 inclusive. It had been the practice as is pointed out in Wagner's report-for the company to operate on a ten-day basis and then shut down for four days. On January 13, having just concluded a period of ten days' operations, the plant was shut down until the following Tuesday. In a conference with the union on January 13, the company indicated to the union its doubt that it would continue to run its plant, because it, the company, had on the previous day sold some of its property to the Carbide and Carbon Chemicals Company. This sale had been reported in the newspapers on January 12. There is no indication whatsoever of anti-union activities on the part of the company prior to, on or after January 13 other than the few anti-union remarks contributed to Superintendent Hill. On January 19, after the company had received a petition signed by 102 of its employees, stating that they did not desire affiliation with any labor organization, the company opened its plant. The company states it opened its plant because negotiations with the Carbide and Carbon Chemicals Company fell through. This, again, is not contradicted. There is no evidence to show that the company had any part in the circulation of the anti-union petitions. In short, there is nothing but inference upon which to base the lockout allegation. Company-Dominated Union. I completely agree with the statement of Mr. Wagner in his report dated July 6, 1939, wherein he says "There is no exidence to show that the company dominated the organization or gave it financial or other assistance." Consequently, there is no basis for an 8 (2) allegation. Refusal to Bargain. The evidence does not disclose refusal to bargain upon which we could pro with a hearing. On January 13, the union first demanded exclusive bar rights. The management in turn demanded that the union prove to it that had a majority of its employees within its membership. This, the union ac to do only by submission of the membership cards to the Board. While the management did not vigorously protest the union's majority, it did not cores the union's majority on January 13, but, nevertheless, entered into some liminary bargaining negotiations. However, on January 19, after the comp had received petitions signed by 102 of its 120 employees stating that the sar employees did not desire affiliation with any labor organization, the compar refused to deal with the union until the union could prove it represented a jority. Certainly, in the absence of any evidence which would indicate that company played a part in the circulation or sponsorship of the petitions, refusal to deal with the uuion was not a violation of Section 8 (5). COMMENTS Special note should be taken of Wagner's comments that the witnesses in the case are extremely hostile, for, with such meager evidence at hand, it would ** disastrous to proceed with a hearing and be faced with the possibility of witnesses repudiating their statements when called to testify. OG/bw N. L. R. B. EXHIBIT No. 381 ELK RIVER COAL & LUMBER CO. N. L. R. B. EXHIBIT No. 381-A MARCH 1, 1939. To: Mr. P. H. Phillips. From: W. J. Perricelli. Possibility of consolidating 8 (2) complaint with pending R proceeding, This is in answer to your memorandum to both Mr. Wagner and myself dated February 28th, in which you request us to furnish you with evidence of compa violation of Section 8 (2), in order to know whether the Board should issue a complaint against the company and consolidate the complaint with the present continued R. Hearing. When the hearing postponed, the intervening union had put in its case. The intervenor had shown, or attempted to show, that it was a labor organization which had obtained a majority through solicitation of cards of the emplore involved. I think the way the record stands on the intervenor's case, the Board might exclude, or might include the intervenor as a bona fide labor organization. As the intervenor concluded its case and the hearing adjourned, Townsend's plan was first to attack the intervenor by direct affirmative evidence that the intervenor was not a bona fide labor organization. Then Townsend intended to get himself certified on the basis of his majority of cards. From the files and from what I learned at the hearing, Townsend planned to introduce several witnesses who had been asked by company officials to join the intervening union and ke wise to make the most of the fact that one Clarence Bailes, an old-time employee who had served in a foreman's capacity for a year preceding the formation of the intervening union, had taken active part in the formation of the intervening union This had been developed on the cross-examination of the intervenor's witness functioning sort of an organization with temporary officers whose tenure had On cross examination too, the intervenor was revealed as a skimpy, hardly expired under the constitution of the intervening union. At the same time however, the record revealed a majority claimed through cards and the rise of the intervening union during the course of dissolution conferences held by you with respect to the Widenira. It might be feasible for me to go through the record and indicate to you where the conclusions above appear as a basis upon which we may issue a complaint. ou think this is feasible, I will go ahead with it as soon as you instruct me to $0. VJP: mr Order Permitting Withdrawal of Petition In the Matter of Elk River Coal & nber Co., Case No. 9-R-286, was received in evidence, marked "N. L. R. B. hibit No. 381-B", and is on file with the committee.) N. L. R. B. EXHIBIT No. 381-C UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD, NINTH REGION the Matter of Elk River Coal & Lumber Company. Widen, West Virginia, and District No. 17, United Mine Workers of America, 1421⁄2 Summers Street, Charleston, W. Virginia, and Employees League of Widen Miners, Widen, West Virginia. Case No. IX-R-286 Pursuant to a stipulation entered into on March 26, 1940, by and between istrict No. 17, United Mine Workers of America, party of the first part, Emoyees League of Widen Miners, party of the second part, Elk River Coal & amber Company, party of the third part, and Philip G. Phillips, Regional Direcr, Ninth Region, National Labor Relations Board, party of the fourth part, id inconformity therewith, which stipulation has been filed in the office of the egional Director of the Ninth Region, the undersigned Intervenor, Employees eague of Widen Miners, hereby withdraw their petition, filed herein on the ay of February 1939, for investigation and certification of representatives purant to Section 9c of the National Labor Relations Act. Dated this 2nd day of April, 1940. EMPLOYEES LEAGUE OF WIDEN MINERS, By (Signed) VAN B. HALL, Attorney. N. L. R. B. EXHIBIT No. 381-D THIS AGREEMENT, made this -, 1940, by and between DISTRICT NO. 17, UNITED MINE WORKERS OF AMERICA, party of the first party, EMPLOYEES LEAGUE OF WIDEN MINERS, party of the second part, ELK RIVER COAL & LUMBER COMPANY, party of the third part, and PHILIP G. PHILLIPS, Regional Director, Ninth Region, National Labor Relations Board, party of the fourth part. WITNESSETH: It is covenanted and agreed by and between the parties hereto as follows: (1) The party of the first part agrees to forthwith withdraw its Petition for Investigation and Certification of Representatives filed with the National Labor Relations Board, hearing upon which is pending "In the Matter of Elk River Coal & Lumber Company and District No. 17, United Mine Workers of America, Case No. IX-R-286," and to file such motion with the Board as may be necessary to cause the dismissal without prejudice of said Case No. IX-R-286. (2) The party of the first part further agrees to withdraw without prejudice a certain charge alleging the party of the second part was an invalid organization under Section 8 (2) of the National Labor Relations Act filed with the Regional Director, party of the fourth part herein, on the 7th day of February 1939 and to file with said Regional Director such motion as may be necessary to cause said charge to be dismissed without prejudice. (3) The party of the second part hereby agrees forthwith to withdraw without prejudice its intervening petition filed in said Case No. IX-R-286 and to file such motion with the Board as may be necessary to cause the dismissal without prejudice to it of said Case No. IX-R-286. (4) It is agreed that in the event any further proceeding is instituted or hearing is held under the National Labor Relations Act involving either the party of the first part, the party of the second part or the party of the third part herein, either of said parties shall have the right to introduce in any such proceeding or hearing all or any part of the Official Record made in said Case No. IX-R-286, without the necessity of calling the witnesses whose testimony is contained in said record, such witnesses having already been examined upon issues arising under Section 9 of the Act, and their testimony having been recorded in said record. |