Royal Dean Coal Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 700 (N.L.R.B. 1969)

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.