Peerless Eagle Coal Co.

PEERLESS EAGLE COAL COMPANY Peerless Eagle Coal Company and United Mine Workers of America, Petitioner. Case 9-RC-10925 September 16, 1975 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 9 on February 3, 1975, an election by secret ballot was conducted under the direction and supervision of the Regional Director among the employees in the stipu- lated unit on February 13, 1975. At the conclusion of the election, the parties were furnished a tally of bal- lots which showed that of approximately 157 eligible voters 50 cast ballots for, and 98 cast ballots against, the Petitioner, and 2 cast challenged ballots. The challenged ballots are insufficient in number to af- fect the results of the election. Thereafter, the Peti- tioner filed timely objections to conduct affecting the results of the election. Pursuant to Section 102.69 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Regional Director conducted an inves- tigation of the issues raised by the objections. During the course of the investigation, the parties were re- quested to submit statements of their positions with respect to the objections and evidence in support thereof. Both parties complied with this request. On April 15, 1975, the Regional Director issued and duly served on the parties his Report on Objections. In his report, the Regional Director recommended that Ob- jections I and 2 be overruled in their entirety and that the Board issue an appropriate Certification of Results of Election. Thereafter, the Petitioner filed exception only to the Regional Director's ruling as to Objection 2, and a supporting brief. The Employer filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this 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 Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- 357 ing the representation of the employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The parties stipulated and we find the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Sec- tion 9(c) of the Act: All production, preparation and maintenance employees of the Employee at its coal mine and preparation plant located near Summersville, West Virginia but excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act. 5. The Board has considered the Regional Director's report, the Petitioner's exception, and the briefs filed by the parties, and hereby adopts the Re- gional Director's recommendations. The only exception filed by the Petitioner per- tained to Petitioner's Objection 2. The Petitioner's Objection 2 asserts that it did not receive the Excelsior I list until 8 days before the elec- tion, thereby depriving it of a sufficient opportunity to communicate with the employees prior to the elec- tion. The record in the instant proceeding discloses that the Regional Office mailed duplicate originals of the Stipulation for Certification Upon Consent Election (herein Stipulation) to both parties on January 27, 1975. In agreement with the parties, the Stipulation provided for the election to be conducted on Febru- ary 13, 1975. The Employer agreed to furnish the Excelsior list at the same time it returned the execu- ted Stipulation. On January 31, 1975, the Regional Office received from the Employer its executed copy of the Stipulation and the Excelsior list. These docu- ments were received by the Regional Office 12 days prior to the election. However, the executed Stipula- tion from the Petitioner was not received by the Re- gional Office until February 3, 1975, only 10 days before the election. On the same date that the Re- gional Office received the executed Stipulation from the Petitioner, it forwarded the Excelsior list to the Petitioner. The Excelsior rule requires the employer to file with the Regional Director an election eligibility list containing the names and addresses of all eligible voters within 7 days after approval by the Regional Director of an election agreement or after a direction of election, and this information must be made avail- able by the Regional Director to all parties in the election proceeding. 1 Excelsior Underwear Inc, 156 NLRB 1236 (1966). 220 NLRB No. 62 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In adopting the Excelsior rule, the Board noted that disclosure under it will maximize the likelihood that all voters will be exposed to arguments for, as well as against, union representation; it will permit the employees to make a more fully informed and reasoned choice; it will tend to eliminate challenges to voters based solely on lack of knowledge of their identity; many objections to election will be settled well in advance of the election; and the public inter- est will be furthered in obtaining more prompt reso- lution of questions of representation. As a means of implementing the Excelsior rule, the Board adopted internal guidelines, which provide as follows: Request for eligibility list: Upon approval of an election agreement, or upon issuance of a di- rection of election, the employer should be re- quested to prepare a list of eligible voters and their addresses. The Employer must file the eli- gibility list with the Regional Director within 7 days after approval of the election agreement, or after the Regional Director or the Board has di- rected an election. The Regional Director shall make the list available to all parties in the case * Service of list: Immediately upon receipt, the Regional Director should send the list by certi- fied mail to all parties to the election. If any party desires to pick the list up at the office, a receipt for the list should be obtained showing time and date of delivery . [National Labor Rela- tions Board Field Manual, §§ 11312.1 and 11312.2.] With respect to the selection of an election date the internal guidelines provide as follows: Selection of an election date: An election may not be held sooner than ten days after the Re- gional Director has received the list of names and addresses of the eligible voters. Where the parties jointly wish a prompt election, presum- ably the employer will make the list available in less than seven days. If the parties are pressing for an early election, the 10-day period can be provisionally calculated from the date it is esti- mated the list will arrive in the Regional Office. [National Labor Relations Board Field Manual, § 11302.1.] In the instant case, the Employer furnished the list of eligible voters prior to the approval of the election agreements by the Regional Director and 12 days before the election. Although the Regional Office did not mail the list to the Petitioner until February 3, 1975, 10 days prior to the election, this delay was necessitated by the fact that the Petitioner's executed Stipulation was not received until February 3, 1975, the earliest date, under the circumstances, that the Regional Office properly could have mailed the list and did so. It is apparent, therefore, that the Employ- er and the Regional Office met all the requirements of the Excelsior rule. In this factual context, there- fore, we find that the requirements of Excelsior were satisfied. Accordingly, we shall overrule the objec- tion in its entirety and certify the results of the elec- tion. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for United Mine Workers of America, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Sec- tion 9(a) of the National Labor Relations Act, as amended.