International Union, Progressive Mine Wkrs. v. NLRB

• Decision Date: 15 August 1963
• Docket Number: 14043.,14001,No. 13991,13991
• Citation: 319 F.2d 428
• Parties: INTERNATIONAL UNION, PROGRESSIVE MINE WORKERS OF AMERICA, and Local No. 403 Progressive Mine Workers of America, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. CENTER POINT BLOCK COAL CORPORATION, an Indiana Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. QUALITY COAL CORPORATION, Brazil Block Coal and Clay Co., Inc., and Carl F. Kumpf, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

319 F.2d 428 (1963)

INTERNATIONAL UNION, PROGRESSIVE MINE WORKERS OF AMERICA, and Local No. 403 Progressive Mine Workers of America, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

CENTER POINT BLOCK COAL CORPORATION, an Indiana Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. QUALITY COAL CORPORATION, Brazil Block Coal and Clay Co., Inc., and Carl F. Kumpf, Respondents.

Nos. 13991, 14001, 14043.

United States Court of Appeals Seventh Circuit.

June 17, 1963.

Rehearing Denied August 15, 1963.

COPYRIGHT MATERIAL OMITTED

G. William Horsley, Robert F. Vespa, Richard L. Lott, Springfield, Ill., George V. Gardner, Gardner & Gandal, Washington, D. C., for International Union, Progressive Mine Workers of America, and Center Point Block Coal Corp.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Hans J. Lehmann, Atty., Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Washington, D. C., for National Labor Relations Board.

Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.

Rehearing Denied En Banc August 15, 1963.

(Swygert, C. J., voted for rehearing).

CASTLE, Circuit Judge.

These cases are before the Court on the petition of International Union, Progressive Mine Workers of America, and Local No. 403 Progressive Mine Workers of America¹ (Case No. 13991) and the petition of Center Point Block Coal Corporation² (Case No. 14001) filed pursuant to Section 10(f) of the National Labor Relations Act,³ as amended, (29 U.S.C.A. § 160(f)) to review and set aside an order of the National Labor Relations Board⁴ and upon the Board's petition under Section 10(e) of the Act (Case No. 14043) for the enforcement of that order.

The charges before the Board were filed by Local 7365, United Mine Workers of America.⁵ None of the employees of Center Point were complainants.

The Board found and concluded, inter alia,⁶ that Progressive violated Section 8(b) (1) (A) of the Act⁷ and that Center Point violated Section 8(a) (1), (2), (3) and (5) of the Act.⁸ The Board found that Progressive violated Section 8(b) (1) (A) by entering into a collective bargaining agreement with Center Point providing for exclusive representation at a time when Progressive did not represent an uncoerced majority of Center Point's employees and by receiving monies deducted and remitted by Center Point as union fees and dues pursuant to that agreement.⁹ The Board found that Center Point refused to bargain with UMW in violation of Section 8(a) (5); unlawfully assisted and supported Progressive, and carried on negotiations for the purpose of concluding and entered into a collective bargaining contract with Progressive at a time when that union did not represent an uncoerced majority of the employees involved, in violation of Section 8(a) (1) (2) and (5); and engaged in an illegal hiring practice in violation of Section 8(a) (1) and (3) by requiring membership in Progressive as a condition of employment.

The Board's order in so far as it applies to Center Point requires that it cease and desist from the unfair labor practices found, or in any other manner interfering with, restraining and coercing its employees in the exercise of their rights under the Act. Affirmatively, the order directs Center Point to withdraw and withhold recognition from Progressive until it is certified by the Board; upon request to bargain collectively with UMW; jointly and severally with Progressive to reimburse all employees for dues and assessments together with interest at the rate of 6 per cent per annum; and to post designated notices. The order requires Progressive to cease and desist from giving effect to the collective bargaining agreement entered into with Center Point; from acting as the collective bargaining agent of Center Point's employees until certified by the Board; and from restraining or coercing in any like or related manner the employees of Center Point in their exercise of rights guaranteed by Section 7 of the Act. Progressive is directed to jointly and severally with Center Point make reimbursement to the employees of dues and assessments with interest, and to post designated notices.

The contentions advanced by Center Point and Progressive as grounds for setting aside the Board's order and denying its enforcement require determination of the following contested issues:

(1) Whether the volume of interstate shipments from Center Point\'s operations is such that the Board properly asserted jurisdiction over it.

(2) Whether with respect to the employees involved Center Point is a successor employer to Quality Coal Corporation.

(3) Whether Center Point unlawfully assisted and supported Progressive.

(4) Whether Center Point by an unlawful hiring practice conditioned employment on membership in Progressive.

(5) Whether the employees\' membership in Progressive and payment of dues and assessments were the result of coercion.

(6) Whether the Board\'s order in so far as it requires Center Point to bargain with UMW and directs the refunding of dues and assessments, with interest, is authorized and proper under the facts and circumstances of the case.

We have carefully reviewed the record, the intermediate report of the trial examiner, and the decision and order of the Board. Our review, in so far as factual findings of the Board are concerned, is limited to a determination of whether or not those findings are supported by substantial evidence on the record considered as a whole. Board findings so supported are conclusive. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456.

With that rule in mind the following summarization of facts and circumstances upon which the Board's findings and conclusions are based will serve as a preface to a consideration of the issues involved.

The Center Point strip mine, located near Center Point, Indiana, was operated, at least since 1955, by Quality Coal Corporation on lands owned or leased by Brazil Block Coal and Clay Co., Inc. Brazil received payments from Quality based on tonnage mined. By January 1958, Brazil had become the owner of Quality's assets and from then until May 31, 1961, Quality operated the mine through an arrangement under which it used Brazil's equipment, Brazil sold the coal, and Quality was paid on a cost-plus basis. During this period Carl F. Kumpf,¹⁰ the president of both companies and a major stockholder of Brazil,¹¹ which had acquired all of the stock of Quality, was in sole charge of their operations. He handled the companies' employee relations, and negotiated and signed labor agreements, without consulting any of the other officers or directors.

For many years, Quality recognized the UMW as the bargaining representative of its production employees at the mine, including truck drivers, and through May 31, 1961 all employees in the unit were members of the UMW. On March 31, 1961, Quality ceased mining operations and gave UMW notice terminating the current collective bargaining agreement effective May 31, 1961, and by that date Quality had terminated all 36 employees covered by the contract. The UMW contracts called for payment of 40 cents per ton to the UMW welfare fund.

In January 1961, a judgment against Quality in excess of $84,000, representing defaults in such welfare fund payments,¹² remained unsatisfied. An engineering firm which had recommended to Kumpf that a larger drag line be installed to increase production and to effect a profitable operation of the mine brought the situation to the attention of John Wade Bell, Jr. and C. F. Cunningham, officers of Lafayette Spring Coal Company of West Virginia, who were interested in additional coal mining investments, and indicated to them that Quality and Brazil could not pay for such an installation. Bell started negotiations with Kumpf to acquire the strip mine and by March 18, 1961, the properties had been appraised, abstracts of title furnished, and agreement reached as to the amounts to be paid for shares of stock in a new corporation. On that date, Center Point was incorporated for the purpose of purchasing and operating the strip mine. Lafayette Spring Coal Company acquired two-thirds of the 1,500 shares of its capital stock. The new corporation purchased a substantial portion of Brazil's assets, including leases, real property, office building, and machine shop in April 1961, and additional equipment and supplies in June. In addition to the equipment acquired from Brazil, Center Point leased the larger drag line as recommended. The assembly of the drag line started about June 5 and it was put into operation about September 5. Center Point continued to use the exclusive sales agent of Quality and Brazil, the Chicago firm of Bell and Zoller, and before starting its own stripping operations on September 5, purchased, prepared and delivered to Bell and Zoller coal for out-of-state shipment valued in excess of $5,000. During the first two weeks of stripping operations Center Point sold coal mined by it to Bell and Zoller, priced at $20,000, some of which was shipped out of Indiana. The interstate shipments resulting from the business of Quality and Brazil had clearly come up to the Board's jurisdictional standards.

Kumpf continued to manage the mine for Center Point. While he was no longer the controlling stockholder, and now consulted with other members of the board of directors on policy matters, he did handle labor relations and conduct the day to day operation of the mine.

Kumpf had expressed a desire to operate the mine on a non-union basis and this was known among the former employees of Quality. Four or five of these employees suggested to him that he get information concerning the welfare plan of Progressive. On or about March 15, 1961, he made a trip to Harrisburg, Illinois, where he secured such information from a coal company operator, a Progressive representative, and a Progressive...