Lake Huron Broadcasting Corp.

908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hand. Its failure to act convinces us that it then regarded the tele- gram as not being a material factor in the election and that it changed its mind only after the adverse election results were made known. For these reasons ewe would overrule the objections and certify the results of the election. Lake Huron Broadcasting Corporation and National Association of Broadcast Employees and Technicians, AFL-CIO, Peti- tioner. Case No. 7-RC-4639. February 08, 1961 DECISION AND ORDER Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on November 17, 1960, under the direction and supervision of the Regional Director for the Seventh Region among the employees in the agreed unit. Upon the conclusion of the balloting, the parties were furnished with a tally of ballots which showed that of approximately 15 eligible voters, 7 cast valid ballots for, and 7 against, the Petitioner, and 1 cast a challenged ballot. The challenged ballot is sufficient to affect the election results. After an investigation, the Regional Director issued his report on challenged ballot, in which he recommended that the challenge be overruled and the ballot be opened and counted. The Employer filed timely exceptions to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, and Kimball]. 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. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees, as stipulated by the parties, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All radio and television engineers and television production per- sonnel at the Employer's radio transmitter at 1620 Gable Road, and its radio and television transmitter at 1650 Treanor Street, Bridge- port Township, Michigan, including film and cameramen, but exclud- ing on-the-air personnel, clerical employees, continuity writers, sales 130 NLRB No. 105. LAKE HURON BROADCASTING CORPORATION 909 employees, traffic personnel, janitors, guards, and supervisors as de- fined in the National Labor Relations Act, as amended. 5. The Board has considered the Regional Director's report, and the Employer's exceptions thereto, and makes the following findings : The Petitioner and Employer entered into a written agreement as to an eligibility list which included the name of Gerald G. Simmet, the challenged voter herein. The agreement expressly provided that the issues of eligibility resolved therein should be final and binding. The agreement with the list of eligible employees attached was made a part of the stipulation for certification upon consent election. At the election, the Employer challenged Simmet's ballot on the ground that he was a supervisor. The Regional Director did not in- vestigate Simmet's supervisory status but overruled the challenge to his ballot on the ground that the parties had stipulated to Simmet's eligibility and that, under the Board's policy set forth in Cruis Along Boats, Inc., 128 NLRB 1019, the parties could not question his status through the challenge procedure. In its exceptions, the Employer contends that the Regional Director improperly refused to investigate Simmet's status and offers evidence to prove that he was a supervisor. The Petitioner filed a motion to strike the proffered evidence! We find merit in the Employer's exceptions. The Regional Director erred in applying the Cruis Along policy herein. That policy was intended to apply to stipulations as to unit placement made at repre- sentation hearings and was not intended to modify the policy appli- cable to agreements as to eligibility made in consent-election cases, such as the present one. In Norris-Thermador Corporation, 119 NLRB 1301, the Board established the rule that the parties to a consent-election agreement would be bound by an eligibility list attached and incorporated into a written and signed agreement if it was specifically stated that all eligibility issues resolved would be final, unless the inclusion or ex- clusion of certain employees contravened the Act or established Board policy. In the present case, as the Employer challenged Simmet's ballot on the ground that he was a supervisor and that his inclusion would be contrary to the Act, it was not, under Norris-Thermador, precluded from raising such issue to Simmet's eligibility. In the circum- stances, as the Regional Director did not investigate this question, we shall remand the case to the Regional Director to enable him to do so.' ' In view of our decision herein, we need not pass upon the Petitioner's motion. 2 Member Fanning concurs in the result herein. However, as indicated in the dissent- ing opinion in which Member Jenkins and he participated in Cruis Along Boats, Inc, supra, Member Fanning would , pursuant to the Board 's statutory obligation to exclude supervisors from employee units, permit challenges to the ballots of alleged supervisors whether or not the prior unit stipulations including such individuals are, as here, in the form of a written consent-election agreement , or are worked out in the course of a hearing Member Kimball concurs in the foregoing views of Member Fanning. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board remanded this case to the Regional Director for further investigation of the challenged ballot herein and for such further proceedings as may be necessary pursuant to the Rules and Regula- tions of the Board.] C & P Coal Company and United Mine Workers of America (Ind.), Petitioner. Case No. 10-RC-4667. February 08, 1961 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF ELECTION On July 19, 1960, the Board issued a Decision and Order in the, above-entitled proceeding,' dismissing the petition for certification. on the ground that the only possible basis for asserting jurisdiction_ under the Board's standards would be the indirect outflow standard,, but as the Employer's operations were "twice removed" from inter-- state commerce, it did not meet that standard.2 Thereafter, on Oc- tober 17, 1960, the Petitioner filed a motion for reconsideration and brief, asserting, inter alia, that the employer was only once removed. from commerce, thereby meeting the foregoing standard. Upon consideration of the Petitioner's motion, brief, and the entire- record herein, we find merit in the foregoing contention of the Pe- titioner for the reasons stated below. The motion for reconsideration- is hereby granted. The record shows that New River Coal Company purchases all of the Employer's coal and has an oral agreement with Royal Fuel Com- pany under which Royal sells New River's coal for it on the open market. Although New River agrees to sell all its coal through Royal Fuel, it is clear on the record as a whole, contrary to our previous finding, that Royal Fuel does not take title thereto but only solicits customers, arranges shipments to them, and deducts 9 percent of the sales price as its commission, thus performing the limited function of sales agent or broker.' During the 2-month period from the start of the Employer's oper- ations to the hearing, the Employer sold 6,000 tons of coal to New River at the price fixed in their agreement, $4.30 per ton. New River turned this entire tonnage over to Royal Fuel and 75 percent of it was then shipped to out-of-State customers. Projected over an entire year, the out-of-State shipments would amount to more than $115,000. As the Employer sells more than $50,000 worth of coal annually to, New River, which in turn ships it out of the State, the Employer meets our indirect outflow standard.4 Accordingly, we shall vacate- 1 Not published in NLRB volumes. 2 Stemons Hailing Service, 122 NLRB 81, 85. 3 Highland Fruit Growers, Inc., 82 NLRB 992. 6 Stiemons Ma4ling Service, supra. 130 NLRB No. 95.