Peerless Eagle Coal Co.

National Labor Relations Board - Board Decisions

Sep 16, 1975

220 N.L.R.B. 357 (N.L.R.B. 1975)

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.