STATE OF WEST VIRGINIA, County of Kanawha, 88: B. M. Flaherty, being first duly sworn, deposes and says that he is Director, International Union, Progressive Mine Workers of America, petitioner herein; that the allegations herein contained are true except as they are stated to be on information, and so far as they are stated to be on information he believes them to be true. Eugene E. Shifflet, being first duly sworn on oath, deposes and says that he is the petitioner named in the foregoing petition; that the facts and allegations therein contained are true except as they are stated to be on information, and so far as they are stated to be on information he believes them to be true. Taken, subscribed, and sworn to before me this - day of December 1938. My commission expires the day of 19-. 1 claim unemployment benefits and declare that the following statements are true and correct. 1. I am unemployed and have registered for work; I am able to work and available for work. 2. I last worked on 8/23/38 for Employer's name: Kelley's Creek Colliery Employer's Address: Ward, W. Va. Month (day) (year) 3. Give the names and addresses of three employers immediately preceding the one shown in Item (2). Employer: Address 4. My regular occupation is: Miner. 5. I lost my job because of (X) lack of work ( ) other (state reason). dismissal wages for Phone Number EUGENE SHIFFLET. PETITIONER'S EXHIBIT No. 2 WEST VIRGINIA DEPARTMENT OF UNEMPLOYMENT COMPENSATION, CHARLESTON SEPARATION NOTICE To Department of Unemployment Compensation, Chelyan, West Virginia: The worker whose name is entered hereon has been separated from his work under the circumstances indicated. 4. Has worker received wages in lieu of notice () yes (X) No. This man was laid off because the job he was on had finished. Employer: Kelley's Creek Colliery Co. Employer's Account No. Address: Ward, W. Va. By: C. F. SCALAY (signed). Title: Clerk. OK 9-20-38-Deputy. Date August 30, 1938. TO WORKER: Take this notice to the nearest employment office. Read instructions on other side. (Copy for Worker) PETITIONER'S EXHIBIT No. 3 WEST VIRGINIA, DEPARTMENT OF UNEMPLOYMENT, COMPENSATION, CHARLESTON SEPARATION NOTICE To Department of Unemployment Compensation Chelyan, West Virginia: The worker whose name is entered hereon has been separated from his work under the circumstances indicated. 1. Worker's name: Shifflet Last name 2. Date of separation: 8-23-38. Eugene E. 3. Reason for separation (check one): 3e. ( ) Illness. Probable duration of separation. 3b. () Voluntary Quit. 3c. (X) Discharged (explain under "remarks"). 3d. ( ) Strike or labor dispute. 3e. () Illness. 3f. () Injury. 3g. () Other (specify). 293-03-3345 Social Sec. No. 4. Has worker received wages in lieu of notice ( ) Yes; ( ) No. Amount $. 5. Remarks: to be returned to work says clerk over phone 9-6-38. Employer: Kelleys Creek Colliery Co. B. F. M. Employer's Account No. Address: Ward, W. Va. By: C. F. SCALAY. Title: Clerk. Date: August 30, 1938. TO EMPLOYER: Read instructions on other side. (Copy for Employer) PETITIONER'S EXHIBIT No. 4 KELLEY'S CREEK COLLIFRY Co., WESTERN RESERVE BUILDING, WEST NINTH AND SUPERIOR AVE., CLEVELAND, OHIO, PHONE CHERRY 6120 A. J. Morgan, Gen. Supt.. November 23, 1938. Kelley's Creek Colliery Co., Ward, Kanawha County, W. Va. DEAR SIR: Paragraph 3 of section 8 of the National Labor Relations Act provides: * "that nothing in this chapter shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section IX (a) in the appropriate collective-bargaining unit covered by such agreement when made." We construe our present contracts with the United Mine Workers of America to be closed-shop agreements and therefore, as a condition of employment we require membership in that organization-this applies to present employees and any others who may be employed by us during the life of the present contracts with the United Mine Workers of America. Please be governed accordingly. Please post copies of this letter on your bulletin board. Very truly yours, Wm. Taylor: h. Form WVUC-B-1. KELLEY'S CREEK COLLIERY CO., WM. TAYLOR, Executive Vice President. EXHIBIT NO. 87 EXHIBIT W-8 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD, NINTH REGION In the matter of Kelley's Creek Colliery Company and International Union of Progressive Mine Workers of America. Case No. IX-C-794 INTERMEDIATE REPORT Upon charges duly made, and acting pursuant to proper authority, the National Labor Relations Board, by Philip G. Phillips, its Regional Director for the Ninth Region, issued its complaint against the Kelley's Creek Colliery Company, the respondent herein. The complaint and notice of hearing were duly served on the respondent. The complaint alleged that the respondent had engaged in unfair labor prac tices affecting commerce within the meaning of section 8 (1) and (3) and section 2 (6) and (7) of the National Labor Relations Act.' The respondent's answer admitted some of the specific facts alleged in the complaint but denied that it had engaged in any unfair labor practices. It alleged that Shifflett was laid off because he had completed the work he was on and there has been no other work available that Shifflett could do to respondent's satisfaction. It alleged further that if respondent should rehire Shifflett and put him back to work it would probably result in a walkout because of a contract respondent had with the United Mine Workers of America. At the opening of the hearing, the United Mine Workers of America, District No. 17, filed a petition and motion for leave to intervene, alleging that the United Mine Workers of America, of which petitioner is a subdivision, has a contract with the respondent covering all workmen in and around the coal mines of respondent, which contract is still running and contains detailed provisions for the adjustment and settlement of all disputes arising between the respondent and its employees; that at the time of entering into the contract and at the time of the hearing said intervenor numbered among its members approximately 98 percent of all workmen in and around coal mines of southern West Virginia, including employees of respondent and particularly the said Eugene Shifflett, referred to in the complaint. The petition to intervene was granted by the undersigned but intervenor was limited in its appearance to meeting the issues raised by its petition and motion. The undersigned, as duly designated trial examiner of the National Labor Relations Board, conducted a hearing February 9, 10, 11, 13, 14, 15, 16, and 17 at Charleston, West Virginia, at which place all parties were afforded an opportunity to participate in the hearing, to call, examine, and cross-examine witnesses and to introduce other evidence. At the conclusion of the hearing the parties were afforded a reasonable opportunity to argue orally before the undersigned, but none of the parties took advantage of such opportunity. The parties were also advised by the undersigned that they might file briefs with the undersigned within ten (10) days from the close of the hearing. Briefs were submitted by counsel for the respondent and the U. M. W. and have been duly considered by the undersigned. The parties were also advised at the conclusion of the hearing by the undersigned that they would be given an opportunity to file briefs or present oral argument before the Board upon request to the Board made within ten (10) days from the receipt of the intermediate report. At the close of the hearing counsel for U. M. W. made a motion to dismiss the complaint, which motion was joined in by counsel for the respondent. Ruling was reserved on said motion, which is at this time denied. On the record thus made, and from his observation of the witnesses, the undersigned makes, in addition to the above, the following specific findings of fact: 1 The National Labor Relations Act is herein referred to as the act; The National Labor Relations Board as the Board; the International Union of Progressive Mine Workers of America as the P. M. W.; the United Mine Workers of America. District No. 17, as the U. M. W.; and Kelley's Creek Colliery Company as the respondent. FINDING OF FACT I. RESPONDENT 1. The Kelley's Creek Colliery Company is a corporation organized and existing under and by virtue of the laws of the State of West Virginia, having its principal office in the city of Charleston, county of Kanawha, State of West Virginia, and has been continuously and at all times hereinafter mentioned engaged in the business of mining, selling, and distribution of coal from its mines in and adjacent to the city of Ward, County of Kanawha, State of West Virginia. II. THE ORGANIZATIONS INVOLVED 2. International Union of Progressive Mine Workers of America is a labor organization, admitting to its membership all production and maintenance employees of the respondent, excluding clerical help and supervisory employees having the right to hire and fire. It is affiliated with the American Federation of Labor. 3. The United Mine Workers of America, District No. 17, is a subdivision of the United Mine Workers of America, affiliated with the Congress for Industrial Organizations, admitting to membership production employees of respondent, excluding mine managers and top foremen. Both the P. M. W. and the U. M. W. are labor organizations within the meaning of the act. III. THE UNFAIR LABOR PRACTICES A. Intimidation, restraint, and coercion 4. The U. M. W.'s experience in the bituminous-coal field (including District No. 17 of the Appalachian District, which takes in southern West Virginia and respondent company) extended beyond and prior to the strike of 1924 in that field. As early as 1922, according to Eugene Shifflett, the U. M. W. was organized in respondent's coal mines. After losing the 1924–1926 strike the U. M. W. was practically outlawed by the coal companies, including respondent, and individual yellow-dog contracts were required as a condition precedent to employment. As a result, the U. M. W. ceased to exist in the respondent company, but in 1929 a U. M. W. local was reestablished in respondent's plant, although it was only a shadow of an organization until the National Industrial Recovery Act was passed in 1933, when, under the terms of that act, a contract was entered into between the coal operators on one side, including respondent, and the U. M. W., representing the employees in the bituminous-coal field, on the other, governing wages, hours, and working conditions of the miners. A contract covering those matters has been in existence between the respondent and the U. M. W. ever since, the last one being dated in 1937, and by its term expires April 1, 1939. It covers coal operators and miners in the Appalachian territory (which includes Pennsylvania, Michigan, Ohio, West Virginia, and part of Kentucky.)3 5. The International Union of Progressive Mine Workers of America began organizational efforts at Ward, West Virginia, where respondent's mines are located, in May 1938. After considerable agitation and several meetings, a local of the union was set up in August 1938 and included in its membership, and those eligible for membership, the production and maintenance employees of the respondent in its various mines. Prior to that similar locals of the P. M. W. had been instituted in other bituminous coal fields, particularly in the State of Illinois, and in some instances written contracts had been negotiated and entered into with some of the coal operators. In the Ward local of the P. M. W. no dues were or are collected from those who join as members, but the expenses of the local are apparently underwritten by the American Federation of Labor. The P. M. W. claims that in the late summer of 1938 it represented a substantial majority of respondent's production and maintenance employees, but offered no proof in support of said claim. On the other hand, the U. M. W. claims that now and at all times since the execution of the contract above referred to, it has represented the vast majority of the workers in respondent's mines. 6. The existing written contract is between certain coal operators' association, on behalf of each member of such association, and certain Kentucky and West Virginia coal operators signatory to the contract, referred to in the contract as operators, party of the first part" and "International Union, United Mine 46 2 Intervenor Exhibit 1. Respondent Exhibit 1. |