Appeal from National Labor Relations Board.
Before BIGGS, MARIS, and JONES, Circuit Judges.
Glen Alden Coal Company has petitioned this court to set aside an order of the National Labor Relations Board requiring it to cease and desist from refusing to bargain collectively with International Molders and Foundry Workers Union of N.A., Local No. 133, hereinafter referred to as the Molders Union, affiliated with the American Federation of Labor, as the exclusive representative of all of its foundry employees in a unit found to be appropriate, from restraining its employees in the exercise of their rights of self-organization and of collective bargaining through representatives of their own choosing in accordance with the provisions of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and to take the affirmative action set out in the Board's order.
Most of the facts are not in dispute. Glen Alden is the largest producer of Pennsylvania anthracite and is engaged in mining and preparing it for sale at its various collieries in Pennsylvania. In the year 1942 most of the coal mined by the petitioner was shipped to points outside the State of Pennsylvania while during that year the petitioner purchased nearly a quarter of a million dollars worth of supplies from vendors outside the State. The jurisdiction of the Labor Board is clear and undisputed.
The petitioner contends that the order of the Labor Board requiring it to enter into a contract with and recognize the foundry employees as a separate and appropriate unit for the purposes of collective bargaining when it has an existing contract with United Mine Workers of America, District No. 1, hereinafter called the United Mine Workers, to represent its employees, is an unreasonable and capricious use of the Board's discretion in determining the appropriate bargaining unit, is inconsistent with standards established by the Board and the courts, is contrary to the purposes of the National Labor Relations Act, and is illegal as an attempt to void a valid preexisting contract made by it with its employees.
Glen Alden employs about fourteen thousand persons in all of its operations. About two hundred fifty of these employees work at what is known as the Exeter Shop. The Exeter Shop consists of blacksmith, boiler, machine, carpenter, electrical and pattern shops, and a foundry. The Shop is conveniently located to the twelve collieries operated by Glen Alden. The Shop services these collieries and does no work except for them.At the time of the hearings there were approximately fifty men, exclusive of supervisory and clerical employees, employed in the foundry.
The Molders Union confines its membership among employees of Glen Alden to molders, core makers, chippers, grinders, laborers, cupola tenders and crane runners at the Exeter Shop. On November 23, 1942 the Board issued a Decision and Direction of Elections*fn1 in which it ordered an election to be conducted among the foundry workers at the Exeter Shop in order to determine representatives for the purposes of collective bargaining. The Molders Union and the United Mine Workers of America were the candidates on the ballot. The Molders Union won the election by a vote of 43 to 1. Fifty-six employees were eligible to vote. The Board therefore certified the Molders Union as the appropriate bargaining agent.
The United Mine Workers has a long history at the collieries operated by Glen Alden. At the turn of the century a bitter struggle occurred between the miners and the operators in the Pennsylvania anthracite region respecting issues of union recognition, pay and working conditions. To settle the dispute, President Theodore Roosevelt appointed an Anthracite Coal Strike Commission which made a number of awards. The first of these was made in 1903 and thereafter from time to time agreements were signed between the operators and representatives of the mine workers covering terms and conditions of operation. The original representation of the mine workers theoretically was by the "Anthracite Mine Workers' Organization". Under the agreement of 1920, however, the United Mine Workers of America formally represented the mine workers.*fn2 It has continued to represent them ever since. The agreement of May 26, 1939 between the United Mine Workers and the operators purports to cover all employees of Glen Alden excepting supervisory and clerical employees. The "recognition" clause of that contract provides, "It is agreed that United Mine Workers of America is recognized herein as the exclusive bargaining agency representing the employees of the parties of the second part. It is agreed that as a condition of employment all employees shall be members of the United Mine Workers of America except those in classifications recognized in the industry as exempt from such membership during the term of the Agreement of May 7, 1936." Foundry workers are not specifically excluded from the agreements nor are they specifically included. The agreements relate to the rights of "miners". It is clear from the record that the foundry employees at the Exeter Shop are not "miners", though their work is essential for the maintenance of mining operations.
It is helpful in the instant case to see how the United Mine Workers and Glen Alden themselves by their actions have interpreted the agreements. Since 1930 the agreements have provided for a check-off of union dues but it appears that the pay of the Exeter Shop employees has not been subject to any check-off. Since 1939 the contracts have contained a closed shop clause but no employee at the Exeter Shop*fn3 has ever been discharged or threatened with discharge because he was not a member of United Mine Workers. Since 1936 the agreements have provided for a seven hour working day for miners, but the fundrymen at the Exeter Shop have worked an eight hour day. The Exeter Shop employees, including the foundry employees, have not been represented in negotiations between the United Mine Workers and the operators and it seems clear that the United Mine Workers' representatives have not negotiated with the operators on behalf of the Exeter Shop employees. In 1937 the United Mine Workers chartered a separate local at the Exeter Shop, but this franchise was revoked in 1937 at the request of the Exeter Shop employees after the local had failed to secure a contract with Glen Alden. In 1937 another charter was proffered by the CIO to the Exeter Shop employees in lieu of that which had been revoked, but the proffered charter was refused. In 1940 an affiliate of the CIO, the United Construction Workers, attempted to organize the Exeter Shop employees but had little success. In May, 1942, after the Molders Union began to organize the Exeter Shop employees, the CIO renewed its attempts at organization but again failed to achieve any substantial result. It appears also that since 1937 bargaining carried on between Glen Alden and the Exeter Shop employees has been conducted on behalf of these employees by a local unaffiliated committee.
We think that there is ample support in the evidence for the Board's finding that the United Mine Workers' agreements with the operators were not intended to cover the Exeter Shop foundry employees. In the light of these and other circumstances which we have narrated, it may not be said that the Board abused its discretion in finding that the foundry workers at the Exeter Shop constituted an appropriate collective bargaining unit. In National Labor Relations Board v. Delaware-New Jersey Ferry Co., 3 Cir., 128 F.2d 130, this court discussed a similar question. We stated there that the decision as to what is an appropriate bargaining unit is a delicate one which was expressly delegated to the Board by Section 9(a) and (b) of the National Labor Relations Act, 29 U.S.C.A. § 159(a) and (b). In Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 152, 61 S. Ct. 908, 912, 85 L. Ed. 1251, the Supreme Court by Mr. Justice Reed said, "The Labor Act places upon the Board the responsibility of determining the appropriate group of employees for the bargaining unit. In accordance with this delegation of authority, the Board may decide that all employees of a single employer form the most suitable unit for the selection of collective bargaining representatives, or the Board may decide that the workers in any craft or plant or subdivision thereof are more appropriate." We do not doubt (as the petitioner insists and as the record shows) that the work of the foundrymen and the other employees at the Exeter Shop is performed solely for the purpose of aiding other employees of Glen Alden, in particular the miners, to mine and prepare coal for shipment, but this is beside the point. The foundryment are clearly within the classifications referred to in the last clause of the last sentence of Mr. Justice Reed's opinion which we have quoted. They are workers in a particular craft whose labors are carried on at a plant which is a subdivision of Glen Alden's extensive properties. As was said in the Delaware-New Jersey Ferry Company case, supra, the selection of the bargaining unit is clearly a matter for the specialized experience and expert knowledge of the Board and accordingly its decision in its administrative field is entitled to great weight.
A preponderant majority of the employees who work in the foundry have indicated an unmistakable intention that they should be represented for the purposes of collective bargaining by the Molders Union. While it is true, as Glen Alden points out, that if the Board's conclusion that the foundry employees constitute an appropriate bargaining unit is sustained, there will be a small island of some fifty employees represented by an AFL union in the midst of some 14,000 other employees represented by the United Mine Workers, this is beside the point. The foundrymen are entitled to collective bargaining representatives of their own choosing as provided in Section 7 of the Act, 29 U.S.C.A. § 157. We cannot conclude that the Board abused its discretion in its choice of an appropriate collective bargaining unit.
The refusal of Glen Alden to bargain collectively with the Molders Union acting on behalf of the foundrymen is apparent. Indeed, Glen Alden admits it, stating candidly that it may not bargain with the Molders Union because its contracts with the United Mine Workers prohibit such a course. Under these circumstances an unfair labor practice as defined by Section 8(5) of the Act, 29 U.S.C.A. § 158(5), is clearly demonstrated and the Board's finding in this respect is supported by adequate evidence.
A further question remains to be disposed of however. Glen Alden contends that as a result of the taking over of its mines and facilities by the Secretary of the Interior, it has no power to comply with the order of the Board and in fact cannot comply with the Board's order until its mines and other ...