Royal Dean Coal Co.

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Royal Dean Coal Company and United Mine Workers of America, Petitioner, and Southern Labor Union Local No. 212, Intevenor. Cases 10-RC-7635 and 10-RC-7701. June 30, 1969 DECISION AND DIRECTION OF ELECTION in Case 10-RC-7701; and ORDER DENYING MOTION FOR RECONSIDERATION in CASE 10-RC-7635 By CHAIRMAN MCCULLOCH AND FANNING AND JENKINS On separate petitions duly filed on December 31, 1968, and March 3, 1968, under Section 9(c) of the National Labor Relations Act, as amended, in Cases 10-RC-7635 and 10-RC-7701, respectively, Petitioner alleged that a question concerning representation existed in a unit composed of all production and maintenance employees of the Employer's mine operations at or near Dean, Scott County, Tennessee. The Regional Director for Region 10 administratively dismissed the petition in Case 10-RC-7635 on February 3, 1969. Petitioner thereafter appealed this action to the National Labor Relations Board and, by order dated March 10, 1969, the Board denied the appeal. Petitioner then filed a motion for reconsideration of the Board's Order. The Regional Director processed the petition in Case 10-RC-7701 and pursuant to his direction, a hearing was held in that proceeding , on March 18, 1969, before Hearing Officer Matthew H. Shade. The case was then transferred to the Board by the Regional Director, in accordance with Section 102.67 of the Rules and Regulations of the Board. Thereafter, Petitioner filed with the Board a brief in support of its petition. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel. The Board has consolidated the two cases for purposes of decision. The Board has reviewed the Hearing Officer's rulings made at the hearing in Case 10-RC-7701 and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in these cases, including Petitioner's brief, 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 organizations involved claim to represent certain employees of the Employer. 3. The petition in Case 10-RC-7701 raises a question affecting commerce 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. The Intervenor contends that no question concerning representation exists, alleging that an existing contract bars an election for its effective term. The facts on which the merit of this contention turns are as follows. The Intervenor and Employer were parties to a collective-bargaining agreement extending from March 1, 1966, to March 1, 1969. On December 31, 1968, Petitioner filed the petition in Case 10-RC-7635, which, as noted, was administratively dismissed by the Regional Director on February 3, 1969. In dismissing this petition, the Regional Director found that Petitioner had refused, without adequate reason, to cooperate in the conduct of a prompt election. The Petitioner appealed the dismissal, and on March 10, 1969, the Board denied the appeal on the ground that the filing of the petition in Case 10-RC-7701 made moot the issues raised by the appeal. Although Petitioner asks that we reconsider this decision, we find no merit in this request. The Petitioner filed the petition in Case 10-RC-7701 on March 3, 1969. Although this petition was filed after the third anniversary of the earlier agreement and before the Intervenor and the Employer executed a new contract, the Intervenor, relying on the doctrine set forth in the Electric Boat case,' contends that no question concerning representation exists. It argues that from the date of the dismissal of the petition in Case 10-RC-7635 on February 3, 1969, the Intervenor and the Employer were entitled to an additional insulated period of at least 60 days to negotiate a new contract and that this 60-day insulated period would extend to and include the execution date (March 7, 1969) and the effective date (March 1, 1969) of the new contract between the Intervenor and the Employer, which runs until March 1, 1972. We find upon the foregoing facts that the petition herein, filed after the expiration of 3 years from the inception date of the 1966 agreement and before the execution of the 1969 agreement, was timely and that the Electric Boat doctrine is inapplicable in the circumstances of this case. As was recently pointed out in a case presenting a similar contention,: the policy enunciated in Electric Boat applies, excepting unusual circumstances, only where an untimely petition is processed under conditions denying the parties to an existing bargaining relationship an opportunity to execute a new contract within the 60-day period. Accordingly, as the Regional Director dismissed the petition in Case 10-RC-7635 administratively about 26 days before the expiration of that period, and since there is no showing that an additional insulated period may be justified on any other grounds, we find, consistent with the Board's 'Electric Boat Division, General Dynamics Corp , 158 NLRB 956. 'The Kroger Company, 173 NLRB No 60 177 NLRB No. 106 ROYAL DEAN COAL COMPANY decision in Kroger Co., supra, that the May 7, 1969, agreement between the Employer and the Intervenor is no bar to an election herein. 4. The parties agree, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees working in and around the Employer's mine at or near, Dean, Scott County, Tennessee, excluding office clerical employees, professional employees, guards and supervisors as defined by the National Labor Relations Act. The 'parties are in disagreement, however, as to the unit status of employees Floyd Jeffers, Ronald Johnson, and Walter Marlow. Petitioner would exclude all three on grounds that they are either supervisors within the meaning of Section 2(11) of the Act or that they lack a community of interest with the other unit employees. The Intervenor contends they should be included. The Employer takes no position. The record contains insufficient information to permit us to rule on the status of Floyd Jeffers or Walter T. Marlow.' They may therefore vote subject 'Petitioner' s contention that Jeffers should be excluded rests on the following facts . He is known to the other employees as the "tipple boss." The existing collective-bargaining contract expressly excludes from its coverage tipple foremen , who are referred to as supervisors therein. However, the only witness called by Petitioner to testify concerning Jeffers' duties admitted that he had little actual knowledge of the Employer's operation or of Jeffers' actual responsibilities The Petitioner's contention that Walter Marlow , a salaried electrician, should be excluded rests principally on the admitted fact that he had on one occasion assumed the responsibilities of the Employer's general manager during an illness of the latter, and on another occasion he similarly assumed the duties of Night-Shift Supervisor M. E. Boston . However, there is no testimony indicating whether Marlow regularly assumes such duties, or does so only on a sporadic basis. See Northern Nevada Chapter, National Electrical Contractors Association and Represented Employers, 131 NLRB 550, fn. 10 Accordingly we shall make no determination concerning the supervisory status of either Jeffers or Marlow at this time. 701 to challenge. As to Ronald Johnson, Petitioner contends that he is a supervisor because, allegedly, he has authority to exclude other employees from the mine. The record reveals that for the past 2 months Johnson has been in charge of making gas inspections prior to the first shift. In order to perform these duties he begins work before the other employees in the unit. If Johnson's inspection should reveal that the mine is unsafe because of the presence of gas, he would so advise the other employees and they would not go into the mine. We find that neither Johnson's duties as a mine inspector nor his other duties' support Petitioner's contention that he is a supervisor. We further find that Johnson is a production and maintenance employee within the unit defined in the petition in Case 10-RC-7701. ORDER It is hereby ordered that the Petitioner's Motion for Reconsideration of the Board's Order of March 10, 1969, in Case 10-RC-7635 be, and it hereby is, denied. [Direction of Elections omitted from publication.] 'Besides his duties as inspector , Johnson performs the general utility and maintenance functions of a "gin man," or "flunky " The record does not show either that Johnson is paid at a higher rate than other unit employees for doing this work, or that he engages in the responsible direction of any of the other employees in the unit, or that he possesses any of the other mdicta of supervisory status 'In order to assure that all eligible voters may have the opportunity to he informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them. Excelsior Underwear Inc, 156 NLRB 1236, N L R B v. Wyman-Gordon Company, 394 U.S 759 . Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all eligible voters, must be filed by the Employer with the Regional Director for Region 10 within 7 days of 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.