Riviera Mines Co.

National Labor Relations Board - Board Decisions

Mar 30, 1954

108 N.L.R.B. 112 (N.L.R.B. 1954)

1 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Membership in good standing in the Union shall be a condition of employment . For the
purpose of this section , tender of the initiation fee on or immediately following the
thirtieth day of employment and tender of the periodic dues uniformly required as a con-
dition of retaining membership shall constitute good standing in the Union.
B. Concerning membership in Local No. 9
A list of employees of Respondent's members as of June 21 and 22, 1952, but including some
not in the bargaining unit, was sufficiently identified and received in widence. The number of
such employees is approximately 520. Charles Meredith, secretary-treasurer of Local No. 9,
identified a list of names which he testified constituted the roster of members of Local No. 9
as of June 21, 1952. All but about 20 of the employees appear as members on the Local No. 9
roster. Meredith testified that one is considered a member of Local No. 9 if he has made
application for membership and has not been suspended or expelled . A member may, without
penalty of suspension or expulsion, fail to pay dues for 6 months or longer , as much time as
the applicant requires is allowed to complete payment of the initiation fee. I find that as of
June 21. 1952, the records of Local No.9 indicate that about 500 of the 520 employees were its
members. Some doubt upon the accuracy of the records is cast by the credited testimony of
Delbert Dahl, an employee of Langendorf United Bakeries, Cake-Cookie Division. Dahl testified
that he has been employed by Langendorf since September 1951 and has never at any time been
a member of Local No. 9 although carried as one on the roster received in evidence.
Because the evidence does not establish how recently those claimed as members of Local
No. 9 have paid dues or how many, if any, have not completed applications for membership,
and because the order of remand does not appear to require such a finding, I do not decide
whether on June 21 employees of Respondent's members had designated Local No. 9 as their
representative.
C. Concerning the 30-day grace period to nonmembers
of Local No. 9
The evidence }s, and I find, that no employee suffered loss of employment because of
nonmembership in Local No. 9 in the 30-day period following June 21. 1952.
RIVIERA MINES COMPANY and INTERNATIONAL UNION
MINE, MILL & SMELTER WORKERS, IND., Petitioner. Case
No. 21-RC-3276. March 30, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before H. C.
Bumgarner, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organization involved claims to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists 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.
4. We find that the following employees constitute a unit
appropriate for purposes of collective bargaining within the
i08 NLRB No. 21.
RIVIERA MINES COMPANY 113
meaning of Section 9 (b) of the Act: All employees of the Em-
ployer at Christmas, Arizona, excluding all clerical employees,
temporary employees hired for special construction work,
guards, watchmen, professional employees, assayers and their
assistants , and supervisors as defined in the Act.
5. The Employer urges that if the Board directs an election
it should give effect to the prior agreement for consent election,
which the Regional Director revoked, and use the payroll eligi-
bility date therein provided, namely, September 8, 1953.
It appears that following the filing of the petition herein, the
Employer and the Petitioner on September 11, 1953, entered
into an agreement for consent election which the Regional
Director approved. In accordance with this agreement, the
Regional Director on September 22, 1953, coniaucted an elec-
tion which the Petitioner lost. Thereafter, the Petitioner
filed timely objections to conduct affecting the results of the
election. Because of the Employer's misconduct, the Regional
Director on October 29, 1953, set aside the election and directed
a new election. However, before a new election was held the Re -
gional Director on November 17, 1953, notified the parties that
he was withdrawing his approval of the agreement for consent
election and restoring the case to the docket for further pro-
cessing because he had learned that the number of employees
in the appropriate unit had increased substantially since the
first election and that to conduct an election under the terms
of the agreement would disenfranchise a•substantial number of
employees who would otherwise be eligible. The case was
thereupon noticed for hearing on the original petition.
On December 30, 1953, the Employer petitioned the Board
for review of the Regional Director's action asserting, in sub-
stance, that the Regional Director was without authority to
set aside the consent agreement. On January 21, 1954, the Board
upheld the Regional Director's authority to withdraw his
approval of the consent agreement.
It further appears that at the time of the original. election
there were approximately 56 employees eligible to vote and
that at the time of the hearing the number of employees in the
unit had substantially increased to between 85 and 90.
In support of its request that the eligibility date prescribed
in the agreement for consent election should govern the new
election, the Employer contends that: (a) The Regional Director
was without authority to withdraw his approval of the consent
agreement and therefore acted arbitrarily and capriciously in
so doing; (b) the mere increase in the number of employees
in the unit did not warrant his disregarding the agreement and
ordering a hearing herein; and (c) a second election is a con-
tinuation of the invalidated first election and therefore the
same eligibility date should be used.
We find no merit in the Employer's contentions. The Board
has held that implicit in the Regional Director's authority to
approve consent-election agreements is the power to withdraw
339676 0 - 55 - 9
1 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such approval .' It has also held that it will not interfere with
the exercise of this power unless the Regional Director acted
in an arbitrary or capricious manner.2 In view of the facts and
circumstances outlined above, particularly the invalidation of
the original election because of the Employer ' s misconduct and
the intervening substantial expansion of the unit , we find that
the Regional Director did not act arbitrarily or capriciously
in withdrawing his approval of the consent agreement and in
refusing to hold a second election based on the original
eligibility date . For the same reasons , we find that it will best
effectuate the policies of the Act to order an election with a
current voting eligibility date provided below and thus make
available the franchise to all the present employees concerned
in the selection of a bargaining representative .3 Accordingly,
we deny the Employer ' s request that the September 8, 1953,
eligibility date prescribed in the consent agreement for the
original election be adopted."
[Text of Direction of Election omitted from publication.]
Member Beeson took no part in the consideration of the
above Decision and Direction of Election.
'Section 102.54 of Board Rules and Regulations; Knox Corporation, 104 NLRB 789.
2 The Welch Grape Juice Company, 96 NLRB 214; McMullen Leavens Company, 83 NLRB
948, 955.
3United Aircraft Corporation, 103 NLRB 878.
4Had the Regional Director not withdrawn his approval of the consent agreement , he would
not have been precluded from holding a new election thereunder with a current eligibility
date. Merrimac Hat Corporation, 85 NLRB 329, 332; McMullen Leavens Company, supr.
SOUTHDOWN SUGARS, INC. and UNITED PACKINGHOUSE
WORKERS OF AMERICA, AFFILIATED WITH THE CIO,
Petitioner . Case No. 15 - RC-981 . March 30, 1954
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
On November 17, 1953, pursuant to a Decision and Direction
of Election issued by the Board on August 27, 1953, ' an election
by secret ballot was conducted under the direction and super-
vision of the Regional Director for the Fifteenth Region among
the employees of the Employer in the unit found appropriate by
the Board. Upon the conclusion of the election, the parties were
furnished a tally of ballots, which showed that of 396 valid votes
cast, 186 were for and 182 were against the Petitioner and 28
were challenged . There were 2 void ballots . The challenges were
sufficient in number to affect the results of the election. On
'Not reported in printed volumes of Board Decisions and Orders.
108 NLRB No. 17.