National Labor Relations Board v. Coal Creek Coal Co., 4543.

• Decision Date: 01 May 1953
• Docket Number: No. 4543.,4543.
• Citation: 204 F.2d 579
• Parties: NATIONAL LABOR RELATIONS BOARD v. COAL CREEK COAL CO.
• Court: U.S. Court of Appeals — Tenth Circuit

204 F.2d 579 (1953)

NATIONAL LABOR RELATIONS BOARD v. COAL CREEK COAL CO.

No. 4543.

United States Court of Appeals Tenth Circuit.

May 1, 1953.

Robert V. Magor, San Francisco, Cal. (George J. Bott, David P. Findling, A. Norman Somers, Norton J. Come and Nancy M. Sherman, Washington, D. C., on the brief), for petitioner.

Therald N. Jensen, Price, Utah, for respondent.

Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

This is a petition of the National Labor Relations Board to enforce its decision and order, made pursuant to a hearing on a conventional complaint charging the respondent, Coal Creek Coal Company, with violations of Section 8(a) (1) (2) (3) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C.A. 158(a) (1) (2) (3). The Board found and concluded that respondent had restrained and coerced its employees in violation of Section 8(a) (1); established and dominated a company union in violation of Section 8(a) (2); and discriminatorily discharged certain enumerated employees in violation of Section 8(a) (3). In addition to the usual cease and desist order, it affirmatively ordered the Company to disestablish the union found to be dominated, and to make the discharged employees whole from the time of their unconditional request for reinstatement.

The respondent concedes the unfair labor practices with respect to the initiation and domination of the independent union, but says that the dominated union has long since been disestablished and does not now purport to exist as a bargaining unit. It is also suggested that the respondent is now in federal receivership and its assets in the process of liquidation; and that all questions of coercion and domination are therefore moot. If, as suggested (and apparently conceded in reply brief) the assets of the Company are to be sold and liquidated and all interest of the respondent therein extinguished, the questions of unfair labor practices and domination are of course moot. But the order of the Board is directed against the respondent, its officers, agents, successors and assigns, and if the respondent is to be operated through a receiver, or reorganized with respondent retaining an interest, either proprietary or managerial, the order of the Board with respect to the conceded unfair labor practices will be enforced, for such responsibility cannot be avoided by reorganizations, transfers or any other "disguised continuance." Southport Petroleum Co. v. N. L. R. B., 315 U.S. 100, 62 S.Ct. 452, 86 L.Ed. 718; N. L. R. B. v. Baldwin Locomotive Works, 3 Cir., 128 F.2d 39; N. L. R. B. v. Colten, 6 Cir., 105 F.2d 179; Bethlehem Steel Co. v. N. L. R. B., 74 App.D.C. 52, 120 F.2d 641; N. L. R. B. v. Weirton Steel Co., 3 Cir., 135 F.2d 494; N. L. R. B. v. National Garment Co., 8 Cir., 166 F.2d 233; N. L. R. B. v. Fred P. Weissman Co., 6 Cir., 170 F.2d 952. On this record, we cannot tell whether the order is enforceable against a continuing entity. That question can be finally and appropriately determined by the Board on remand. Cf. Southport Petroleum Co. v. N. L. R. B., supra.

The only real issue in controversy is the validity of the Board's order requiring the reinstatement with back pay of employees found to have been discriminatorily discharged. That part of the order pertains to two entirely different discharges the first of which relates to one Lloyd Golding.

The evidence shows that the respondent was engaged in the operation of a coal mine near Price, Utah, and that Golding started to work loading trucks at the tipple on November 14, 1949. Some time thereafter, the United Mine Workers started an organizational campaign among the miners of that vicinity. Golding joined the Local Union on February 9, 1950, and soon thereafter began soliciting his fellow employees for membership in the union. The mine was closed in the first part of March when the U.M.W. set up picket lines, which the employees refused to cross. Most of the employees later signed an agreement, under which, as stockholders in the mining corporation, they could cross the picket lines without any anti-union stigma. On March 6, General Manager Powell took some of the employees through the picket line in an automobile. Golding and other employees were supposed to follow in a company station wagon, driven by a foreman, but when Golding and two other employees refused to cross the picket line, saying they were members of the union, the foreman returned the station wagon and the employees to the Company headquarters. When Powell returned and learned of the incident, he drove the station wagon and some of the employees through the picket line to the mine, but Golding remained behind.

About the same time an election was conducted by the Industrial Commission of the State of Utah to determine whether the U.M.W. would represent the employees as a bargaining unit. When the U.M.W. won the election, Powell stated to the assembled employes that those who had voted for the union should strike their names from the stock-purchase agreement and their money would be refunded. Golding and two others had their names stricken from the list. A little later Powell suggested that the employees should organize an independent union. When, on March 8, Golding reported for work at the usual hour, Powell told him "you wouldn't go through that picket line when I told you to the other day so I got somebody in your place." On March 13, however, Golding returned to work at the request of the mine foreman and continued on his job of dumping coal cars until March 22.

On the night of March 21, Golding was elected recording secretary of the Local U. M.W. On the morning of the 23d, the station wagon which usually picked up the employees at their homes to take them to the mine did not come for Golding and his brother. When they went to the office to ascertain why they had not been picked up, they found no one in authority and returned home. About the time they got there, Powell telephoned them to report to the office. When, upon arrival, they asked why they had not been picked up, Powell replied that it was necessary to reduce their labor forces, and that they had less seniority than others retained. Powell finally agreed, however, that Floyd Golding had seniority over the other employees, and both he and his brother were put to work as carpenter helpers on the erection of company-owned houses. After one day, they were told that they were no longer needed and Floyd Golding was thereafter unsuccessful in his attempts to contact Powell or other hiring authorities. Golding's job dumping coal cars was taken by Ray Bentley, who was regularly a shuttle car operator. Denying any knowledge of Golding's union affiliations, Powell testified that he was discharged because of a necessary reduction in labor force due to cancellation of coal orders; that Bentley, who replaced him, was an experienced shuttle car operator capable of performing both operations, and that as a common...