Margaret-Peerless Coal Co.

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Margaret-Peerless Coal Company and United Mine Workers of America, Petitioner. Case 9-RC-7771 October 1, 1968 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Francis X. Schwegmann, Hearing Officer Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, by direction of the Regional Director for Region 9, this case was trans- ferred to the National Labor Relations Board for decision. A brief has been filed by the Employer. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-mem- ber panel. The Board has reviewed the Hearing Officer's I At the hearing , the Employer sought to introduce evidence to the effect that Petitioner is engaged in direct economic competition with the Employer through Petitioner 's alleged ownership of and other financial interests in mining and coal transportation and marketing operations The Hearing Officer refused to admit such evidence We find that in so ruling the Hearing Officer did not commit prejudicial error The Petitioner is a labor organization within the meaning of Section 2(5) of the Act The alleged conflict of interest relates to the competency of Petitioner to act as exclusive statutory representative of the employees. We believe that in the circumstances it would effectuate the policies of the Act to direct an immediate election. If the alleged conflict of interest continues , this issue may be litigated by the Employer in a sebsequent appropriate proceeding 2 We find no merit in the Employer 's contention that the Petitioner is not a labor organization because it has bound itself by contract, custom and practice with other coal companies and associations not to bargain or negotiate any other or different terms of employment from those embodied in Petitioner 's national contract In our opinion, it is premature and inappropriate to consider at this time the possibility that Petitioner might not bargain in good faith should it be designated by a rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirm- ed.' Upon the entire record in the case, the Board finds- 1. The Employer is'engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to re- present certain employees of the Employer.' 3. A question affecting commerce exists concerning 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 the following employees constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Employer at its mine and tipple, located near the intersection of Routes 19 and 43 in Nicholas County, West Virginia, but excluding all office clerical employees, technical and professional employees, and all guards and supervisors as defined in the Act.' [Text of Direction of Election4 omitted from publication. ] majority in an election See, e g , Butler Manufacturing Co , 167 NLRB No 39. 3 Petitioner would exclude E. O. Nutter, Bonner Cooper , and Pat Bell as supervisors . As the record establishes that Bonner Cooper and Pat Bell do not possess any indicia of supervisory authority , we shall include them We shall permit E. O. Nutter to vote subject to challenge since the record is inconclusive with respect to his status. The Employer would exclude Everett Mullins , Jr., as an independent contractor and two drivers allegedly employed by Mullins. As the record as developed does not permit a final determination as to whether these individuals are employees of the Employer, we shall permit them to vote subject to challenge 4 An election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 9 within 7 days after the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Ex- celsior Underwear Inc , 156 NLRB 1236. 173 NLRB No. 16