FULL UTILIZATION OF MANPOWER

SATURDAY, APRIL 17, 1943

HOUSE OF REPRESENTATIVES, COMMITTEE ON MILITARY AFFAIRS, Washington, D. C.

The committee met at 10 a. m., Hon. Andrew J. May (chairman) presiding.

The CHAIRMAN. The committee will please be in order. We will continue hearings on H. R. 2239 and other bills the subject of these hearings.

At this point, I offer for printing in the record the decision, together with the dissenting opinion, of the National Labor Relations Board in the matter of Union Collieries Coal Co., Oakmont, Pa., and Mine Officials' Union of America, case No. R-3464 of the records of the National Labor Relations Board.

(The matter above referred to is as follows:)

UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD

Case No. R-3464

In the Matter of UNION COLLIERIES COAL COMPANY, OAKMONT, PENNSYLVANIA, AND MINE OFFICIALS' UNION OF AMERICA (IND.)

Messrs. Rose and Eichenauer, by Mr. Don Rose and Mr. John Corcoran, of Pittsburgh, Pa., for the Company.

Mr. Samuel Krimsly, of Pittsburgh, Pa., and Mr. John McAlpine, of Bairdford, Pa., for the Union.

Mr. George J. Hadjinoff, of counsel to the Board.

DECISION AND DIRECTION OF ELECTION

STATEMENT OF THE CASE

On November 21, 1941, Mine Officials' Union of America, herein called the Union, filed with the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Union Collieries Coal Company, Oakmont, Pennsylvania, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 10, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice.

On January 2, 1942, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on January 12, 13, and 14, 1942, at Pittsburgh, Pennsylvania, before W. G. Stuart Sherman, the Trial Examiner duly designated my the Chief Trial Examiner. The Company and the Union were rep

resented 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 hearing the Company moved for dismissal of the petition on the following grounds: that the persons in the various classifications of employment included in the proposed unit are supervisory officials and not "employees" within the meaning of the Act; that the unit proposed is not appropriate inasmuch as it does not include similar employees of all other members of Western Pennsylvania Coal Operators Association to which Association the Company had delegated the power to handle its labor relations; and that if it be determined that the persons in the claimed unit are "employees" within the meaning of the Act, then, under various agreements entered into by the said Association, they should be represented for the purposes of collective bargaining by the United Mine Worker's of America and not by the Union. The Trial Examiner reserved ruling on the motion. For reasons appearing below, the motion is hereby denied. During the course of the hearing, the Trial Examiner made various rulings on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed.

Thereafter, both the Company and the Union filed briefs which have been considered by the Board. Pursuant to notice, hearings for the purpose of oral argument were held before the Board at Washington, D. C., on February 3, and March 24, 1942. The Company and the Union appeared by counsel and presented oral argument. Oral argument was also presented in behalf of American Federation of Labor, United Mine Workers of America and International Association of Machinists.

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

FINDINGS OF FACT

I. The business of the Company

Union Collieries Coal Company, Oakmont, Pennsylvania, a Pennsylvania corporation, is engaged in the mining, production, distribution, and sale of coal. It owns three mines located in Allegheny County, Pennsylvania. Raw materials used by the Company during the year 1940, including powder, mine props, steel, oil, gasoline, wire, and ether miscellaneous commodities, were valued at approximately $400.000. Slightly less than 50 percent of the raw materials purchased during 1940 was secured from places outside the State of Pennsylvania. During the same period the Company sold bituminous coal valued at approximately $3,000,000.00, about 75 percent of which was shipped to points outside the State of Pennsylvania. The Company admits that it is engaged in commerce within the meaning of the Act.

II. The organization involved

Mine Officials' Union of America is an unaffiliated labor organization, admitting to membership employees of the Company.

III. The question concerning representation

The Company and the Union stipulated at the hearing that a question concerning representation has arisen in that the Union requested the Company to enter into collective bargaining negotiations and the Company questioned the Union's majority representation in an appropriate bargaining unit.

A statement of the Regional Director introduced into evidence at the hearing shows that the Union has substantial representation among the employees in the unit alleged to be appropriate and that as of the time of the hearing the Company employed 58 persons in such unit.1

We find that a question has arisen concerning the representation of employees of the Company.

1 The Regional Director reported that the Union submitted 49 application for membership cards, 9 of which were dated in March and 40 were dated in April 1941 that all signatures appear to be genuine; and that 41 of such cards bear names of employees on the pay roll of the Company of December 4, 1941.

IV. The effect of the question concerning representation upon commerce

We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.

V. The appropriate unit

The Union contends that all assistant foremen, night bosses, fire bosses, weigh bosses, and coal inspectors employed by the Company in its three mines constitute a unit appropriate for the purposes of collective bargaining. The Company disputes the appropriateness of the unit.

The Company's first objection rests upon the contention that persons employed in the classifications specified are supervisory officials belonging to the “employer's" group and are not "employees" within the meaning of the Act.

The nature of employment and the extent of duties and powers of these supervisory officials as disclosed by the record may be summarized as follows:

Assistant mine foremen.-The Mining laws of Pennsylvania provide that when mine workings become so extensive that a mine foreman cannot personally carry out the provisions of the law, sufficient assistants, who shall be under the supervision of a foreman, shall be employed. Assistant mine foremen must possess certificates of qualification, which can be obtained after an applicant has passed the examination required by law. The Mining laws further provide that the duties of assistant mine foremen shall be to assist the mine foremen in complying with the provisions of the law and that they shall be liable to the same penalties as mine foremen for any violation thereof in portions of the mine under their jurisdiction.

In his section an assistant mine foreman must see that the men perform their work in accordance with production plans and safety rules. He instructs the employees in their duties, examines the section to see if conditions safe for . work exist, directs men to their starting places, and, at the end of the shift, makes a written report. Assistant mine foremen do not make efficiency ratings and have no authority to hire or discharge. However, if a man commits a violation of the rules, the assistant foreman may issue a violation or penalty slip and send the offender to the mine foreman for discipline. Any grievance between miners under his supervision, or between him and one of his men, is settled by the mine foreman. In all three mines assistant mine foremen are paid on a daily basis and receive $10.25 per day. The daily wage of an ordinary miner varies from $6.76 to $9.00.

Night bosses.-They must possess the qualifications of an assistant mine foreman and have an appropriate certificate. The night boss is in charge of the entire mine for the shift, and has all the duties and responsibilities of a mine foreman. He is not required to consult the mine foreman unless something "very unusual" occurs, such as a mine fire. Most of night bosses have mine foremen's certificates. Assistant foremen receive instructions from the night boss in their shift and report to him concerning conditions in their sections. A night boss may supervise as many as seven assistant foremen but has no authority to hire or discharge.

Fire boss. Under the Mining laws of Pennsylvania, there must be employed in every gaseous mine at least one certified fire boss, whose duty it is to examine the mine at least 3 hours prior to the appointed time for each shift to enter the mine, and once during each shift. He examines the mine for explosive or noxious gases, as well as other dangers, and examines the roof and sides of motor roads. At the end of each inspection, he makes entries in a book provided for that purpose. He has authority to enforce compliance with the safety rules, but has no authority to hire or discharge.

Weigh boss. His function is to weigh the coal mined by miners on scales located down in the mine, and to enter the number of the car and the weight in a book or on daily sheets which he turns in to the office. A weigh boss has no one working under him, gives no orders or instructions, and has no authority to hire or discharge.

Coal inspector.-His duty is to visit the mine and determine by inspection whether the men are mining and loading impurities, such as slag, dirt, slate, and other non-combustible material, along with the coal. It is customary for him

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to warn miners when he discovers violations, but he has no authority to hire or discharge. He may, however, refer a miner who commits a series of violations of the rules of the Company to the mine foreman for discipline. Any experienced miner can act as coal inspector and no certificate of qualification is required for the position. Coal inspectors are employed in only one of the three mines involved in this proceeding.

In view of the nature of their duties and the extent of their powers, we find that assistant foremen, night bosses, fire bosses, weigh bosses, and coal inspectors are employed in a supervisory or quasi-supervisory capacity. The question presented by the Company's first objection is whether such employees are entitled to the benefits of the Act.

It is now well settled that supervisory officials are “employees" within the meaning of Section 2 (3) and Section 8 (3) of the Act and that any discrimination in regard to their hire and tenure of employment because of their union activities constitutes an unfair labor practice within the meaning of the Act. In this connection, the Circuit Court of Appeals for the Eighth Circuit stated: 3

"It is first argued that Eckert is not an employee within the meaning of the Act. The contention is that being a foreman he is an employer and not an employee. Section 2 (2) of the Act is relied upon wherein an "employer" is defined to include "any person acting in the interest of an employer." Section 2 (3) of the Act is ignored. It provides that the term employee shall include any employee. There is no inconsistency in these provisions when facts are taken into consideration. A foreman, in his relation to his employer, is an employee, while in his relation to the laborers under him he is the representative of the employer and within the definition of Section 2 (2) of the Act. Nothing in the Act except foremen from its benefits nor from protection against discrimination nor unfair labor practices of the master."

We have frequently acknowledged the right of supervisory employees to be represented by labor organizations for the purposes of collective bargaining with their employer. Beginning with Matter of International Mercantile Marine,* we have consistently certified representatives for licensed masters and mates or licensed engineers, although they exercise supervisory authority over seamen aboard ships. In Matter of Chrysler Corporation we found the plant protection force, engaged in guarding company property against sabotage, theft, trespass, fire and accident hazards, and enforcing safety and disciplinary regulations, to

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Supervisory employees were held to have been discriminated against on account of their union activities within the meaning of Section 8 (3) of the Act in the following cases; a subforeman, National Labor Relations Board v. Fruehauf Trailer Company, 301 U. S. 49, rev'g 85 F. (2d) 391 (C. C. A. 6), setting aside 1 N. L. R. B. 68; a foreman, National Labor Relations Board v. Skinner and Kennedy Stationery Co., 113 F. (2d) 667 (C. C. A. 8), and Matter of American Potash Company and Chemical Corporation and Borax-Potash Workers Union, 3 N. L. R. B. 140, enf'd 98 F. (2d) 448 (C. C. A. 9); a graduate chemist acting as director of research for a mining company, Eagle-Picher Mining and Smelting Company v. National Labor Relations Board, 119 F. (2d) 903, 911 (C. C. A. 8); powerhouse chief engineer, Matter of Warfield Company and International Union of Operating Engineers, 6 N. L. R. B. 58; newspaper district and branch managers, Matter of Star Publishing Co. and Seattle Newspaper Guild, 4 N. L. R. B. 498 enf'd 97 F. (2d) 465 (C. C. A. 9).

3 National Labor Relations Board v. Skinner and Kennedy Stationery Co., 113 F. (2d) 667, footnote 2, supra.

Cf. the railway Labor Act, where the Congress expressly declared its policy in this regard. Title I, Section 1, contains the following provision:

"Fifth. The term 'employee' as used herein includes every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official [italics supplied] in the orders of the Interstate Commerce Commission now in effect, and as the same may be amended or interpreted by orders hereafter entered by the Com mission pursuant to the authority interpreting such existing orders: Provided, however, That no occupational classification made by order of the Interstate Commerce Commission shall be construed to define the crafts according to which railway employees may be organized by their voluntary action, nor shall the jurisdiction or powers of such employee organizations be regarded as in any way limited or defined by the provisions of this Act or by the orders of the Commission."

5 Matter of International Mercantile Marine et al. and International Union of Operating Engineers, Local No. 3, 1 N. L. R. B. 384; see also Matter of Bull Steamship Co. and Baltimore Insular Line, Inc., and United States Merchant Marine Officers Association, Inc., Federal Labor Union #22745, A. F. of L., 36 N. L. R. B. 99.

Matter of Chrysler Corporation and United Protective Workers of America, 36 N. L. R. B. 593. See also Matter of Bendix Products Corporation and International Union, United Automobile Workers of America, Bendix Local No. 9, 3 N. L. R. B. 682, and 15 N. L. R. B. 965; Matter of R. C. A. Manufacturing Company, Inc., and Local 72, United Electrical, Radio, and Machine Workers of America (C. I. 0.), 28 N. L. R. B., No. 123.