Perry Coal Company v. NLRB

• Decision Date: 17 January 1961
• Docket Number: No. 12889,12915.,12889
• Citation: 284 F.2d 910
• Parties: PERRY COAL COMPANY and Peabody Coal Company et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. UNITED MINE WORKERS OF AMERICA et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

284 F.2d 910 (1960)

PERRY COAL COMPANY and Peabody Coal Company et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

UNITED MINE WORKERS OF AMERICA et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 12889, 12915.

United States Court of Appeals Seventh Circuit.

December 2, 1960.

Rehearing Denied January 17, 1961.

Howard P. Robinson, Chicago, Ill., William F. Guffey, Paul C. Zempel, St. Louis, Mo., M. E. Boiarsky, Charleston, W. Va., Welly K. Hopkins, Washington, D. C., Edmund Burke, Springfield, Ill., Harrison Combs, Washington, D. C., V. Lee McMahon, St. Louis, Mo., Sidley, Austin, Burgess & Smith, Chicago, Ill., Guffey & McMahon, St. Louis, Mo., of counsel, for petitioners.

Thomas J. McDermott, Associate General Counsel, Louis Schwartz, Attorney, N. L. R. B., Washington, D. C., Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Brian S. Ahearn, Attorney, N. L. R. B., Washington, D. C., for respondent.

Before DUFFY and SCHNACKENBERG, Circuit Judges, and MERCER, District Judge.

DUFFY, Circuit Judge.

Appeal No. 12889 is before this Court upon the petition of Peabody Coal Company (Peabody) to review and set aside an order of The National Labor Relations Board¹ issued against Peabody and also against the petitioners in appeal No. 12915.

Appeal No. 12915 is before the Court upon petition of the United Mine Workers of America, its District 12, and its Local Unions 1227 and 1229, to review and set aside the same order of the Board. In its answer which applies to both appeals, the Board has requested enforcement of its order.

The charging party is the Progressive Mine Workers of America. Among the sections of the Labor Management Relations Act claimed to have been violated are: Sections 8(a) (1); 8(a) (2); 8(a) (3); 8(a) (5); 8(b) (1) (A) and 8(b) (2), 29 U.S.C.A. § 158(a) (1-3, 5), (b) (1) (A), (2).

No employee of either of the coal mines hereinafter described complained of any coercion or discriminatory conduct. Fundamentally, this is a struggle between the Progressive Mine Workers of America (Progressive) and the United Mine Workers of America (UMW) with the employer, Peabody, being more or less in the middle.

For many years prior to the summer of 1957, Progressive and its Local 167, represented employees of Midwest-Radiant Corporation (Midwest) at the Millstadt mine, and Progressive and its Local 75 represented employees of Perry Coal Company (Perry) at the O'Fallon mine. This representation was accomplished by means of labor agreements between Progressive and its Locals 167 and 75 and Coal Producers Association of Illinois of which Perry and Midwest were members.

For many years prior to the summer of 1957, Peabody, as a member of the Illinois Coal Operators Association, had recognized UMW as the exclusive bargaining representative at twenty-seven other mines which it owned and operated in Illinois and other parts of the country. The collective bargaining agreement included the National Bituminous Coal Wage Agreement of 1950 as amended, and the Wage Agreement and Working Conditions of District No. 12.

The 1952 amendment provided that the Agreement covers the operation of all of the coal lands owned or held under lease by the coal operators, or acquired during the term of the contract. This amendment was carried forward and preserved by the 1956 amendment which provided that the Agreement covered all of the bituminous coal mines owned or operated by the coal operators who were parties to the agreement.

Through a process of liquidation and merger occurring about October 3, 1957, the properties of Perry and Midwest became the properties of Peabody. The only employer now involved in these proceedings is Peabody.

In May or June, 1957, which was after Peabody acquired control of the Millstadt and O'Fallon mines, Hugh White, president of UMW's District 12, notified Hartman general mine superintendent of Peabody, and McCollum, a vice president of Peabody and formerly a vice president of Perry, that Peabody must comply with the provisions in the National Bituminous Coal Wage Agreement by recognizing UMW and applying the terms of the contract at the Millstadt and O'Fallon mines. His demand was not based upon a claim that District 12 represented any of the employees at these mines.

McCollum and Hartman agreed the contract applied to all Peabody operations, and stated that they would apply the contract as a matter of course when their contract with Progressive expired, and when UMW could show that it represented a majority of the employees.

In May or June 1957, White obtained from Hartman a list of the names and addresses of the employees of the Millstadt mine, and obtained from McCollum a similar list of the employees at the O'Fallon mine. Both Hartman and McCollum knew UMW planned to attempt to organize the employees of the two mines. Hartman testified that such lists which were partially incorrect, had been previously furnished to charity organizations, manufacturers' representatives, insurance men and others.

On July 1, 1957, White sent letters to all employees at both mines. At this time the mines were closed down for the annual vacation period. The letters recited that UMW had served notice on Peabody that it must comply with the provisions in the National Bituminous Coal Wage Agreement, and that all provisions of that contract be applied at the Millstadt and O'Fallon mines. It invited all employees to become members of UMW, and enclosed a membership card upon which it requested the signature of the person addressed.

On July 4, 1957, Roy Dupee, president of Progressive's District No. 1, wrote Peabody, cautioning it to comply with the Progressive agreement and the wishes of "your employees as to Union affiliation." Peabody did not reply to Dupee's letter. Dupee made numerous telephone calls to Peabody at St. Louis to ascertain the company's position concerning the demand of UMW. No one in authority would or did answer.

The annual vacation period at both mines was scheduled from June 28 to and including July 8. However, at Millstadt, certain repair work was in progress, and the opening date there was re-scheduled to July 15th. The mine did reopen on July 20th. O'Fallon was reopened on July 22nd.

While the mines were closed, Peabody withdrew from the Coal Producers Association of Illinois, and also gave notice to Progressive that it would terminate the contract between them on September 30, 1957. On August 4, 1957, Dupee wrote Peabody protesting Peabody's contemplated termination of the agreement, and requested Peabody to meet with Progressive as the employees' bargaining representative to negotiate a new agreement. Peabody did not respond to this request to bargain. On September 30, 1957, Peabody terminated its contract with Progressive and ceased making payments to the Progressive Welfare and Retirement Fund. On October 1, 1957, Peabody recognized UMW, and applied the UMW contract at the Millstadt and O'Fallon mines.

The Board adopted substantially all of the trial examiner's conclusions and recommendations. The Board found Peabody violated Section 8(a) (2) and (1) by assisting and supporting UMW, a) by furnishing UMW with lists of its employees at the two mines; b) by discriminatorily locking out employees at Millstadt from July 15 to July 20, 1957, and at the O'Fallon mine from July 9 to July 20, 1957, in order to encourage membership in UMW; c) during the periods of lockouts, threatening employees with continued lockout; d) by refusing to bargain with Progressive; e) by terminating the bargaining agreement with Progressive on September 30; f) by discontinuing payments to Progressive's Welfare and Retirement Fund on September 30; g) by entering into an exclusive bargaining contract with UMW at a time when that Union did not represent an un-coerced majority of employees; and h) by entering into a contract containing illegal closed shop provisions. The Board also found the conduct of Peabody violated Section 8(a) (3) and (5) of the Act.

The Board found and determined UMW violated Section 8(b) (1) (A) and (2) of the Act by demanding Peabody enter into a collective bargaining agreement with it; by its letter of July 1, 1957, addressed to each employee of the two mines; and by its newspaper ad addressed to mine employees stating UMW was requiring Peabody to apply the provisions of the UMW contract at the two mines and by entering into contracts containing illegal Union-security provisions.

Peabody claims and offered testimony tending to prove that the reopening of the Millstadt mine was delayed for economic reasons, and the reopening of the O'Fallon mine was delayed for safety reasons, but the trier of the facts found otherwise. The examiner and the Board relied to a considerable extent upon statements made by vice president McCollum, general superintendent Hartman, and mine superintendent Schroeder, to the effect that the mines would not reopen and operate unless UMW was designated as bargaining representative by the employees.

True, these officers denied making many of the statements relied upon, but we cannot disturb credibility resolutions made by the Board. N. L. R. B. v. Wagner Iron Works, 7 Cir., 220 F. 2d 126, 142. The weight to be attached to and the credibility to be accorded testimony is a matter for the trier of the facts. Sunshine Biscuits, Inc. v. N. L. R. B., 7 Cir., 274 F.2d 738, 741.

The trial examiner found the furnishing of the mailing lists to UMW did not "constitute unlawful assistance to United and interference within the meaning of the Act. * * *" The Board disagreed. It did not say the furnishing of the lists was illegal per se, but that the furnishing of the lists in the context of other acts of assistance constituted illegal assistance, citing Wagner Iron Works, 104 N.L.R.B. 445, enforced, N. L. R. B. v. Wagner Iron Works, 7 Cir., 220 F.2d 126.

We think...