Tullahoma Concrete Pipe Co., Inc.

TULLAHOMA CONCRETE PIPE CO. 555 Tullahoma Concrete Pipe Co., Inc. and Teamsters, Chauffeurs, Helpers and Taxi Cab Drivers, Local #327, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 26-RC-2681 November 28, 1967 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, JENKINS, ZAGORIA, AND BROWN Pursuant to a stipulation for certification upon consent election approved by the Regional Director for Region 26 on July 17, 1967, an election by secret ballot was held on July 28, 1967, under the direction and supervision of the Regional Director among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of 43 eligible voters, 42 cast ballots,' of which 21 were for the Teamsters, 21 were for the Mine Wor- kers, and none were cast against the participating labor organizations. No objections to the conduct of the election or to conduct affecting the results of the election were filed by the parties. In accordance with the National Labor Relations Board Rules and Regulations, the Acting Regional Director conducted an investigation and, on August 8, 1967, issued and duly served on the parties his report on election, recommending that, in accord with Section 102.70(d) of the National Labor Rela- tions Board Rules and Regulations and Statements of Procedure, Series 8, as amended, a runoff elec- tion not be held, and that the Board certify the elec- tion results. Thereafter, the Petitioner filed timely exceptions to the Acting Regional Director's re- port, and the Employer filed a response to such ex- ceptions. Upon the entire record in this case, the National Labor Relations Board finds: 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act, as amended, 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 con- cerning the representation of the employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed in the Employer's Tullahoma, Tennessee, operation, but exclud- ing office clerical employees, guards, and su- pervisors as defined in the Act. 5. The Board has considered the Acting Re- gional Director's report, the Petitioner's exceptions thereto, and the supporting brief, and hereby adopts the Acting Regional Director's findings and recommendations.2 Accordingly, as we have overruled the objec- tions, and as the tally of ballots shows that neither the Petitioner nor the Intervenor has 'received a majority of the valid votes cast, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes has not been cast for the Teamsters, Chauffeurs, Helpers and Taxi Cab Drivers, Local #327, or for the International Union of District 50, United Mine Workers of America, and that neither of the said labor organizations is the exclusive representative of the employees in the unit found appropriate, within the meaning of Section 9(b) of the National Labor Relations Act, as amended. MEMBER BROWN, dissenting: I dissent because my colleagues' decision produces a result which, in my opinion, is at vari- ance with basic statutory purposes. In the election held in a voting unit of 42 em- ployees, each competing union received 21 votes. Notwithstanding that all employees thus demon- strated a desire for union representation, my col- leagues dismiss this proceeding by virtue of Section 102.70(d) of the Board's Rules and Regulations. This section provides, in pertinent respects, that where an election results in a tie between competing labor organizations, with no votes cast against representation, no runoff election is allowed. The rationale for not conducting a runoff in this situation is that where there are no votes of a third choice to redistribute, there is "no basis for expecting that a run-off will produce results at a variance with the original vote."3 But this assumption is not neces- sarily valid. On the contrary, it is just as reasonable to assume that, if given the opportunity for a runoff I The Acting Regional Director found that an additional employee was discharged for cause on the day of the election , before voting. 2 The Petitioner's exceptions , and request for a runoff election , raise no material or substantial issues of fact or law which would warrant reversal of the Acting Regional Director's findings and recommendations with respect thereto or require a hearing in this proceeding . Nor does con- sideration of our dissenting colleague's opinion impel us to depart from the existing Board rule. 2 United States Rubber Company, 83 NLRB 378, 379; accord, Inter- Ocean Steamship Company, 69 NLRB 561, 562. 168 NLRB No. 78 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election, at least some of the employees would vote differently and break the tie rather than be without a collective-bargaining representative for another year until a new petition may be filed. The choice of which assumption to adopt as a basis for administrative action should, in my judgment, be determined by reference to declared Congressional policy of encouraging collective bar- gaining and protecting the right of employees to designate a representative for that purpose. It is my opinion that such statutory considerations impel adoption of the latter assumption. I would therefore revise the rule to permit a single runoff election to break a tie vote when all eligible employees have voted for representation, and I would direct such runoff in the present case. Even though cases presenting this problem do not arise very often, the incongruity allowed by present Board practice is no less unjust to the employees in- volved. The weight of precedent should not be used as a justification for perpetuating this inequitable result.