Riviera Mines Co.

1 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Membership in good standing in the Union shall be a condition of employment . For the purpose of this section , tender of the initiation fee on or immediately following the thirtieth day of employment and tender of the periodic dues uniformly required as a con- dition of retaining membership shall constitute good standing in the Union. B. Concerning membership in Local No. 9 A list of employees of Respondent's members as of June 21 and 22, 1952, but including some not in the bargaining unit, was sufficiently identified and received in widence. The number of such employees is approximately 520. Charles Meredith, secretary-treasurer of Local No. 9, identified a list of names which he testified constituted the roster of members of Local No. 9 as of June 21, 1952. All but about 20 of the employees appear as members on the Local No. 9 roster. Meredith testified that one is considered a member of Local No. 9 if he has made application for membership and has not been suspended or expelled. A member may, without penalty of suspension or expulsion, fail to pay dues for 6 months or longer , as much time as the applicant requires is allowed to complete payment of the initiation fee. I find that as of June 21. 1952, the records of Local No.9 indicate that about 500 of the 520 employees were its members. Some doubt upon the accuracy of the records is cast by the credited testimony of Delbert Dahl, an employee of Langendorf United Bakeries, Cake-Cookie Division. Dahl testified that he has been employed by Langendorf since September 1951 and has never at any time been a member of Local No. 9 although carried as one on the roster received in evidence. Because the evidence does not establish how recently those claimed as members of Local No. 9 have paid dues or how many, if any, have not completed applications for membership, and because the order of remand does not appear to require such a finding, I do not decide whether on June 21 employees of Respondent's members had designated Local No. 9 as their representative. C. Concerning the 30-day grace period to nonmembers of Local No. 9 The evidence }s, and I find, that no employee suffered loss of employment because of nonmembership in Local No. 9 in the 30-day period following June 21. 1952. RIVIERA MINES COMPANY and INTERNATIONAL UNION MINE, MILL & SMELTER WORKERS, IND., Petitioner. Case No. 21-RC-3276. March 30, 1954 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before H. C. Bumgarner, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent cer- tain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. We find that the following employees constitute a unit appropriate for purposes of collective bargaining within the i08 NLRB No. 21. RIVIERA MINES COMPANY 113 meaning of Section 9 (b) of the Act: All employees of the Em- ployer at Christmas, Arizona, excluding all clerical employees, temporary employees hired for special construction work, guards, watchmen, professional employees, assayers and their assistants , and supervisors as defined in the Act. 5. The Employer urges that if the Board directs an election it should give effect to the prior agreement for consent election, which the Regional Director revoked, and use the payroll eligi- bility date therein provided, namely, September 8, 1953. It appears that following the filing of the petition herein, the Employer and the Petitioner on September 11, 1953, entered into an agreement for consent election which the Regional Director approved. In accordance with this agreement, the Regional Director on September 22, 1953, coniaucted an elec- tion which the Petitioner lost. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. Because of the Employer's misconduct, the Regional Director on October 29, 1953, set aside the election and directed a new election. However, before a new election was held the Re - gional Director on November 17, 1953, notified the parties that he was withdrawing his approval of the agreement for consent election and restoring the case to the docket for further pro- cessing because he had learned that the number of employees in the appropriate unit had increased substantially since the first election and that to conduct an election under the terms of the agreement would disenfranchise a•substantial number of employees who would otherwise be eligible. The case was thereupon noticed for hearing on the original petition. On December 30, 1953, the Employer petitioned the Board for review of the Regional Director's action asserting, in sub- stance, that the Regional Director was without authority to set aside the consent agreement. On January 21, 1954, the Board upheld the Regional Director's authority to withdraw his approval of the consent agreement. It further appears that at the time of the original. election there were approximately 56 employees eligible to vote and that at the time of the hearing the number of employees in the unit had substantially increased to between 85 and 90. In support of its request that the eligibility date prescribed in the agreement for consent election should govern the new election, the Employer contends that: (a) The Regional Director was without authority to withdraw his approval of the consent agreement and therefore acted arbitrarily and capriciously in so doing; (b) the mere increase in the number of employees in the unit did not warrant his disregarding the agreement and ordering a hearing herein; and (c) a second election is a con- tinuation of the invalidated first election and therefore the same eligibility date should be used. We find no merit in the Employer's contentions. The Board has held that implicit in the Regional Director's authority to approve consent-election agreements is the power to withdraw 339676 0 - 55 - 9 1 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such approval .' It has also held that it will not interfere with the exercise of this power unless the Regional Director acted in an arbitrary or capricious manner.2 In view of the facts and circumstances outlined above, particularly the invalidation of the original election because of the Employer ' s misconduct and the intervening substantial expansion of the unit , we find that the Regional Director did not act arbitrarily or capriciously in withdrawing his approval of the consent agreement and in refusing to hold a second election based on the original eligibility date . For the same reasons , we find that it will best effectuate the policies of the Act to order an election with a current voting eligibility date provided below and thus make available the franchise to all the present employees concerned in the selection of a bargaining representative .3 Accordingly, we deny the Employer ' s request that the September 8, 1953, eligibility date prescribed in the consent agreement for the original election be adopted." [Text of Direction of Election omitted from publication.] Member Beeson took no part in the consideration of the above Decision and Direction of Election. 'Section 102.54 of Board Rules and Regulations; Knox Corporation, 104 NLRB 789. 2 The Welch Grape Juice Company, 96 NLRB 214; McMullen Leavens Company, 83 NLRB 948, 955. 3United Aircraft Corporation, 103 NLRB 878. 4Had the Regional Director not withdrawn his approval of the consent agreement, he would not have been precluded from holding a new election thereunder with a current eligibility date. Merrimac Hat Corporation, 85 NLRB 329, 332; McMullen Leavens Company, supr. SOUTHDOWN SUGARS, INC. and UNITED PACKINGHOUSE WORKERS OF AMERICA, AFFILIATED WITH THE CIO, Petitioner . Case No. 15 - RC-981 . March 30, 1954 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES On November 17, 1953, pursuant to a Decision and Direction of Election issued by the Board on August 27, 1953, ' an election by secret ballot was conducted under the direction and super- vision of the Regional Director for the Fifteenth Region among the employees of the Employer in the unit found appropriate by the Board. Upon the conclusion of the election, the parties were furnished a tally of ballots, which showed that of 396 valid votes cast, 186 were for and 182 were against the Petitioner and 28 were challenged . There were 2 void ballots . The challenges were sufficient in number to affect the results of the election. On 'Not reported in printed volumes of Board Decisions and Orders. 108 NLRB No. 17.