Cruis Along Boats, Inc.

CRUIS ALONG BOATS, INC. 1019 CONCLUSIONS OF LAW 1. The operations of Cadillac Wire Corp. constitute trade, traffic, and commerce among the several States, within the meaning of Section 2(6) of the Act. 2. Steel, Metals, Alloys and Hardware Fabricators and Warehousemen Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondents have not engaged in unfair labor practices as alleged in the complaint. [Recommendations omitted from publication.] Cruis Along Boats, Inc. and District 50, United Mine Workers of America, Petitioner. Case No. 5-RC-2940. August 06, 1960 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Decision and Direction of Election issued by the Board,' an election by secret ballot was conducted on January 29, 1960, in the above-entitled proceeding under the direction and the supervision of the Regional Director for the Fifth Region among the employees in the appropriate unit. Upon completion of the election, the parties were furnished a tally of ballots which showed that of approximately 98 eligible voters, 93 were cast, of which 44 were for, and 38 against, the Petitioner, and 11 ballots were challenged. The challenged ballots were sufficient in number to affect the results of the election. No objections to the election were filed by the parties.' In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation of the challenged ballots and on April 15, 1960, issued and served upon the parties his report on challenges, in which he found that two of the individuals whose ballots were challenged properly belonged in the unit, and the remaining nine were supervisors within the meaning of the Act. As all 11 of the above individuals had been specifically included within the unit by the Board's Decision and Direction of Election, pursuant to a stipulation of the parties at the hearing, the Regional Director made no recom- mendation as to the disposition of the challenges, pending a Board ruling as to the effect of the stipulation. The Employer filed timely exceptions and a supporting brief as to the Regional Director's find- ings that the above nine individuals were supervisors. The Regional Director in his report raises the issue of whether the Board should honor the stipulation entered into by the parties at the hearing to include the above 11 individuals in the unit in light of his investigation. At the original hearing the parties, pursuant to an off-the-record discussion, agreed that the 11 individuals in question "do not have the authority to hire or fire, effectively recommend such 1 Unpublished. 128 NLRB No. 115. 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action, nor do they responsibly direct any employee nor assign them work, such assignment being of a responsible nature." The Board in its Decision and Direction of Election adopted the unit stipulated by the parties, and in footnote 2 of its Decision listed the names and job titles of the 11 individuals which the parties agreed should be included in the unit. Neither party subsequent to the hearing made a motion to the Board to reopen the hearing, nor did either party after the issuance of the above Decision file a motion for its reconsideration. At a preelection conference on the day of the election the Petitioner apparently for the first time questioned the stipulation contending that "further investigation revealed that the 11 employees involved were definitely supervisory within the meaning of the Act and their votes would be challenged." At the election the Petitioner was per- mitted by the Board agent to challenge the 11 ballots. In his investigation of the challenges the Regional Director found that 9 of the 11 individuals responsibly directed the work of others and were supervisors under the Act 2 The Employer in its exceptions, however, raises material and substantial issues of fact concerning the alleged supervisory status of these employees which could only be resolved by a second hearing. In addition, the Employer contends that the Petitioner should be required to honor its stipulation and that the challenges be overruled in accord therewith. In the present state of the record, we find merit in the Employer's contention, and we are unable to reconcile ourselves to order;.gs would be required in this case, a second hearing in the absence of some showing by the Petitioner that the contentions advanced to repudiate the stipulation were newly discovered or were not available at the time of the original hearing: In the interest of expeditious handling of representation cases in general, the Board has a well-established policy of holding parties to a stipulation, such as herein in question, which on its face and on the basis of facts developed at the hearing does not contravene any Board policy or statutory proscription.` In our opinion to permit a party to repudiate a stipulation formally made at a hearing on the day of the election on the basis of unresolved contentions, or as our dissenting colleagues apparently advocate because the individuals in- volved "may be" improperly placed, would give encouragement to unwarranted and dilatory claims and would result in a lack of finality to Board proceedings and decisions, , Indeed, it its apparent that but for the stipulation at the hearing at which it was adequately repre- sented and had full opportunity to present its position, the very eligibility issue that the Petitioner questioned for the first time on the 2 As to the remaining two, the Regional Director found that they were nonsupervisors and properly belonged in the unit. 8 See, e.g., Phalo Plastics Corporation, 123 NLRB 503, 504; Port Houston Iron Works, Inc., 103 NLRB 1489, 1491; Hagen Manufacturing Company, Inc., 100 NLRB 1321, 1322. 4 Cf. Vent Control, Inc. of Ohio, etc., 126 NLRB 1134. CRUIS ALONG BOATS, INC. 1021 day of the election would have then been litigated and terminated with finality on the merits. To permit the Petitioner, in the face of the stipulation, to have this issue again raised through a postelection hearing would, in our opinion, be permitting the Petitioner to play fast and loose with the Board's administrative processes and would appear to be based more upon its concern with probable election results rather than with its concern for the statutory requirements of the Act. Contrary to the implication of the dissenting opinion, we are not "knowingly" including proscribed individuals in the unit. Our refusal to investigate this matter at this stage of the proceedings is based upon procedural grounds and does not necessarily mean that the individuals in question are appropriately in the unit. The pro- cedural bar we are applying herein is grounded upon our established policy to promote sound administrative practice in conducting elec- tions and is similar to our procedural rule against postelection chal- lenges, which was approved by the Supreme Court of the United States, even though it "conceivably may result in the counting of ineligible voters." s Therefore, for the purposes of the election, we find that the parties are bound by their stipulation, and without pass- ing upon the question of whether or not the individuals in question are in fact supervisors, we shall overrule the challenges to the ballots of O. Joy, W. Joy, Ward, Selby, Lankford, Williams, Pardue, Hall, Langley, Elliott, and Thomas. The Board directed that the Regional Director for the Fifth Re- gion shall, within 10 days from the date of this Direction, open and count the ballots and serve upon the parties a supplemental tally of ballots.] MEMBERS JENKINS and FANNING, dissenting : We cannot agree with the majority's refusal, under the circum- stances of this case, to order a hearing for the purpose of determining whether the 11 individuals whose ballots were challenged are super- visors within the meaning of the Act. At the outset, we are constrained to observe that the holding of the majority is obscure and ambiguous as it is susceptible of two entirely different interpretations. On the one hand, it is said that the parties are bound by their stipulation to include the disputed individuals in the unit. On the other hand, however, the majority states that the individuals in question are not necessarily included in the appropriate unit, but their ballots must be counted. The effect of the first ap- proach is that possible supervisors become part of a unit with rank- and-file employees. The effect of the second approach is to allow the ballots of possible supervisors to affect the results of the election 6 See N.L.R.B. v. A. J. Tower Company, 329 U.S. 324, 331-335. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a bargaining representative for rank-and-file employees. We re- ject both interpretations-regardless of which the majority espouses- as beyond the Board's statutory authority and contrary to sound administrative practice. The Board is, of course, obligated to enforce the statute as written and such power as it has is completely derived therefrom. Clearly, the Act requires the Board to exclude supervisors from a unit of employees, since they are excluded from the statutory definition of employees in Section 2(3), and the Board is without jurisdiction to hold otherwise.' Also, Section 9 (a) of the Act, clearly precludes participation of supervisors in a Board election by requiring that the exclusive representative be "designated or selected . . . by the ma- jority of the employees" in the appropriate unit. In the instant case, if the disputed individuals are supervisors-and the Regional Director found after investigation that nine of them are-then by knowingly including them in the unit of employees or counting their ballots in the face of timely challenges, the majority is exceeding the powers delegated to the Board by Congress and acting contrary to specific prohibitions in the Act.' Furthermore, the Board is also under a statutory mandate by virtue of Section 9(b) to resolve disputes as to employee status within the meaning of the Act and is not authorized totally to surrender this duty, as it is doing in this instance. Whether the agreement of the parties is construed as one binding upon them for purposes of in- clusion in the unit or eligibility to vote, by requiring adherence of the parties to their bare stipulation with no supporting evidence as to the lack of supervisory status of the 11 individuals in the face of a likelihood that their stipulation is erroneous, our colleagues are ab- dicating the Board's statutory function. Moreover, if the majority is holding the stipulation binding only for purposes of inclusion in the unit, then under the circumstances of this case, the majority is accepting a waiver of a statutory exclusion which cannot be waived." In furtherance of the foregoing obligations, the Board has stated frequently and correctly that, in the interest of expeditious handling of representation cases in general, it will honor the stipulations of the parties which are not inconsistent with the Act or with Board policy,' but that any stipulation which is repugnant to the statute or 6 The Illinois Canning Co., 125 NLRB 699 7 See Boyd Leedom et al. v. William Kyne, et al., 358 U.S. 184. s United Insurance Company of America, 122 NLRB 911, 272 F. 2d 446 ( C.A. 7), en- forcement denied on other grounds. 9It is well established that where the Board adopts a stipulation concerning eligibility on the basis of record evidence, the parties may not relitigate that matter by means of challenges or objections . Cooper Supply Company, 120 NLRB 1023 . Cf. Hagan Manu- facturing Company, Inc., 100 NLRB 1321 ; Port Houston Iron Works, Inc., 103 NLRB 1489; Bon Marche, 118 NLRB 1621 . In contrast, here the Board did not in fact make an eligibility finding regarding the 11 disputed individuals, but merely noted the agree- CRUIS ALONG BOATS, INC. 1023 the Board's policy will be disregarded." In the realm of its statutory power, the Board has no leeway and is strictly limited to what Con- gress has delegated to it under the Act. By its holding here, the majority is honoring a bare agreement which may be in conflict with the statute. It is incumbent upon the Board to ascertain whether or not there is such a conflict. The majority justifies its action by characterizing it as a procedural bar and in doing so equates timely challenges such as are involved here, i.e., challenges of the voters at the time they appear at the polls to vote and before they cast their ballots, to postelection challenges, i.e., an attempt to question the eligibility of voters after they have cast their ballots. The Supreme Court of the United States has ap- proved the Board's rule against postelection challenges in the A. J. Tower case," but this affords no support for the position of our colleagues. Thus, it is patently clear from a reading of that opinion that the Court approved this rule because of the Board's policy of permitting timely challenges in the same manner as is done in political elections and the Court's finding that the rule is consistent with con- gressional intent. Indeed, the Supreme Court made the following specific comments : 12 ... One of the commonest protective devices is to require that challenges to the eligibility of voters be made prior to the actual casting of ballots, so that all uncontested votes are given absolute finality... . Long experience has demonstrated the fairness and efficacious- ness of the general rule that once a ballot has been cast without challenge and its identity has been lost, its validity cannot later be challenged. This rule is universally recognized as consistent with the democratic process. And it is generally followed in corporate elections. The Board's adoption of the rule in elections under the National Labor Relations Act is therefore in accord with the principles which Congress indicated should be used in securing the fair and free choice of collective bargaining representatives. It is thus clear that Congress intended that the Board have the authority to reject postelection challenges and that this is an exception ment of the parties without specifically adopting it. Moreover, to the extent a finding might be said to have been made, it was supported solely by a conelusionary statement of the parties that these individuals do not exercise supervisory authority. Statements of this kind do not establish absence of such authority, being words of art reflecting legal conclusions which do not assist in the resolution of disputes. National Gypsum Company, 128 NLRB 315 1O For examples of cases where the Board has rejected stipulations contrary to the Act, see Vent Control, Inc of Ohio, et al., 126 NLRB 1134 ( supervisors ) ; F M. Reeves and Sons, Inc., 114 NLRB 1243 ( supervisors ) ; Central Cigar d Tobacco Co., 112 NLRB 1094 (supervisors ) ; Colonial Shirt Corporation, 114 NLRB 1214 (guards) ; and see United Insurance Company, supra ( independent contractors). n N.L.R B. v. A. J. Tower Co., 329 U.S. 324. 22 Ibid. at 331 and 332. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the limitations referred to above which Congress has placed upon the Board's power. The Board itself has apparently recognized this distinction. In Flight Enterprises, Inc.," which involved circumstances very similar to those in the instant case, the Board rejected postelection challenges, but indicated that timely challenges would have been acceptable. In that case the Board found, on the basis of the parties' stipulation at the hearing, that leadmen were not supervisors. At the election, the petitioner challenged the ballots of some of the leadmen on the ground they were supervisors.14 After the election the Employer filed objec- tions to the election alleging that leadmen were supervisors and that some had been permitted to vote without challenge. The Board over- ruled the Employer's objection with the following statement: The Regional Director overruled this objection on the ground that the Employer was estopped from asserting that the leadmen were ineligible to vote, in view of the Board's appropriate unit finding, based on the parties' stipulation at the hearing, that leadmen are not supervisors. We agree with the Regional Di- rector's conclusion for the following reason, basic to the Board's election procedures. The Employer prepared the eligibility list used in the election and both the Employer and the Petitioner had observers present during the balloting. Like the Petitioner, the Employer had the opportunity to challenge the ballot cast by any of the employees it deemed ineligible to vote. Having failed to do so, the Employer cannot, under well-established principles, correct its oversight by post-election challenges in the form of an objection. If the Board were to entertain the challenges at this time, its election processes would be converted from a definitive resolution of preference into a protracted resolution of objections, perhaps concerning issues purposely disregarded or suppressed against the contingency of an adverse result. [Emphasis supplied.] It is clear to us that by the present holding, the majority is over- ruling, without so stating, Board decisions in the above-noted and related cases and is disregarding the reasoning of the Supreme Court in the Tower case. But even assuming, arguendo, that the Board has the power to change its procedures in this respect, it is clear to us that the present holding of the majority will have a multiple, wide- spread, and undesirable impact on the Board's processes. 18119 NLRB 1442. It is noted that two members of the present majority participated in that decision. 14 With regard to these challenged ballots, the Regional Director recommended sus- taining some and overruling others. As no exceptions were taken to the Regional Director's rulings with respect to the Petitioner 's challenged ballots, the Board adopted them pro forma. CRUIS ALONG BOATS, INC. 1025 In the first place, there will hereafter be a difference in the effect of an agreement as to eligibility depending on whether it is made via a stipulation such as is involved here at the time of the hearing or in connection with the preelection check of an eligibility list, the former being absolutely binding and the latter being binding only if in the form of a "written and signed agreement which expressly provides that issues of eligibility resolved therein shall be final and binding upon the parties." 15 This difference in treatnuiet can only result in fewer agreements during the hearing, lest an incorrect concession be made which cannot later be corrected.16 Further, this treatment is an invitation to employers who may wish to do so to withhold informa- tion concerning the duties of borderline classifications for the purpose of having supervisors or other ineligible categories included in a unit to increase the antiunion vote." Secondly, the majority declines to dispose of the question of inclu- sion or exclusion of the disputed employees at this posture of the case, presumably in the interest of finality. But the only result is greater uncertainty. If the majority is in fact not ruling on inclusion, the issue is still unresolved, and if the election should result in the certification of representatives the question can be finally settled only by the filing of a motion requesting that the Board clarify its certifica- tion in this respect. The majority implies that this would be the proper method of proceeding. Since it is clear that the same situation may arise in almost any case, we foresee an increase in uncertainty as to actual unit composition and in the number of motions for clarifica- tion which the Board will be required to consider. Lastly, and by no means the least, the majority is now adopting a new rule which separates eligibility from inclusion and permits the first without the second. This is a complete departure from anything the Board has previously done. Thus, the Board at one time held that certain employees, such as seasonal or part-time employees, were 16 Norris-Thermador Corporation, 119 NLRB 1301. '"It should be noted that an agreement at a hearing is usually based on less actual knowledge than a nonbinding agreement on an eligibility list prior to election. Thus, during the course of the hearing the parties rarely have before them a complete list of the employer 's employees and their categories , whereas the preelection check of the payroll list involves consideration of just such a list. ''+ The majority states that the Petitioner 's position "would appear to be based more upon its concern with probable election results rather than with its concern with the statutory requirements of the Act" and thereby implies that a concern with election results is somehow reprehensible . We think it is obvious that any representation pro- ceeding is entirely directed to the election results and that all parties are, as they should be, greatly concerned therewith. Indeed, we have no doubt that the Employer 's position here is equally based upon its concern with the probable election results and not with the statutory requirements . Otherwise , it would not insist upon strict adherence to the agreement regardless of the status of the disputed employees , but would welcome a deter- mination of their status. We can perceive nothing wrong with any party 's taking proper advantage of any statutory or procedural requirements which may favor its position, and this is so whether the proceeding be an investigation in a representation case or litiga- tion of an unfair labor practice case before the Board or a legal action in any court. 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD included in the unit but were ineligible to vote.18 The Board subse- quently changed this rule by holding that if employees were properly includable in a bargaining unit their eligibility to vote followed auto- matically.19 Until now this has continued to be the Board's practice. Now, however, the majority is holding that persons may be eligible to vote although they may not be properly includable in the unit. We can see some reason for the inclusion without eligibility, and we are in accord with the automatic combination of inclusion and eligibilty. But eligibility without inclusion is without support in logic or prece- dent. We must reject such a procedure as an abuse of the Board's dis- cretion and a breach of its obligations under the Act. In sum, the Board's attention has been directed here to the fact that possible supervisors may be included in the stipulated unit and that their votes may affect the election results. Under these circum- stances, we do not believe that the Board can substitute the parties' agreement for its determination of the status of the disputed persons, for purposes, of either inclusion or eligibility, and thus evade or abdicate its obligations and duty under the Act. Nor, for the reasons given, can we subscribe to the changes which the majority is making in the Board's precedures. Whether the unit contains supervisors who should be excluded therefrom and ineligible to vote can only be ascertained in a hearing. We would order such a hearing. Indeed, we are firmly convinced that this is the only appropriate action which the Board can take. Therefore, we dissent from the majority's decision. Is E g., The Fair Department Store, 107 NLRB 1501; Producers Rice M1118 , Inc, et al, 106 NLRB 119. 19 See, e g., Sears Roebuck & Company, 112 NLRB 559, 569, footnote 28. P. G. Gray 1 and United Packinghouse Workers of America, AFL-CIO, Petitioner. Case No. 18-RC-4148. August 26, 1960 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 Kenneth W. Haan, 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 certain em- ployees of the Employer. ' The name of the Employer appears as amended at the hearing 128 NLRB No. 117.