The Leatherwood Co.

THE LEATHERWOOD COMPANY. The Leatherwood Company and Teamsters Local No. 175, affiliated with International Brotherhood of Teamsters,. Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 9-RC-8190 June 11, 1970 DECISION, DIRECTION, AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, executed on July 23, 1969, an election by secret ballot was conducted on August 26 and 27, 1969, under the direction and supervi- sion of the Regional Director for Region 9, among the employees in the stipulated unit. At the conclu- sion of the balloting, the parties were furnished with a tally of ballots which showed that, of approx- imately 63 eligible voters, 62 cast valid ballots, of which 30 were for, and 25 were against, the Peti- tioner, and 7 were challenged. The challenges were sufficient in number to affect the results of the elec- tion . No objections to conduct affecting the elec- tion were filed. In accordance with the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8 , as amended, the Regional Director investigated the challenges and, on Janua- ry 14, 1970, issued and duly served upon the parties his report thereon, recommending that the challenges to the ballots cast by employees Buford H. Bailey, Jr., Ellen Bronner, Mary Lucille Fletcher, Nola Francis, George Johnson, and Joyce Wheeler be overruled. With regard to the seventh challenged ballot, that of employee Leonora Murphy, the Regional Director found that evidence concerning her eligibility was conflicting and could best be resolved by a hearing. The Regional Director therefore recommended that all chal- lenged ballots except that of Leonora Murphy be opened and counted and that a revised tally, includ- ing therein the count of 6 ballots, be served upon the parties. If the tally disclosed that Petitioner had received a majority of the valid votes cast, and that the unresolved challenged ballot of Leonora Murphy could not affect the election result, the Re- gional Director recommended that the Board issue a certification of representative. However, if the revised tally disclosed that the election result had not been determined, and that Murphy's ballot could affect the results of the election, the Regional Director recommended that a hearing be held to ' A seventh employee, Leonora Murphy, is also challenged by the Em- ployer, but she was expressly excluded by the parties from their agreed- 277 resolve the issue of fact raised by her challenged ballot. Thereafter, the Petitioner filed timely excep- tions to the Regional Director's report and the Em- ployer filed a reply. 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 powers in connection with this case 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. 2. The Petitioner is a labor organization which claims to represent certain employees of the Em- ployer. 3. A question affecting commerce exists con- cerning representation of employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The following employees, as stipulated by the parties, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer at its places of business in Beckley, Bluefield, and Kimball, West Virginia, Bristol, Tennessee, and Nar- rows, Virginia, excluding all agricultural em- ployees, office clerical employees, professional employees, and guards and supervisors as defined in the Act. 5. The Board has considered the challenges, the Regional Director's report, the Petitioner's excep- tions thereto, and the Employer's reply brief, and, upon the entire record in this case, hereby adopts the Regional Director's findings and recommenda- tions, except as modified herein. Petitioner contends initially that a 7-page eligi- bility list executed by the parties on July 23, 1969, did not resolve the eligibility of six employees (Bailey, Bronner, Fletcher, Francis, Johnson, and Wheeler), whom it now challenges.' The agree- ment, which listed expressly all of the above-named employees except Bailey, reads as follows: The undersigned parties hereby agree that the foregoing list consisting of seven pages con- stitutes all the employees who are eligible to vote in the election to be conducted in this case, number 9-RC-8190, and that this list ex- pressly resolves all issues of eligibility herein and shall be final and binding upon the parties signatory hereto, subject to the right of either party hereto to challenged the vote of Miss upon eligibility list They could not resolve her status and decided that she should vote, if at all , subject to challenge 183 NLRB No. 37 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leona [sic] Murphy and subject further to any additions or corrections in the payroll list to be furnished of employees for the payroll period ending July 26, 1969. As the agreement's terms show, the Employer and Petitioner agreed that the list could be "subject further to any additions or corrections in the payroll list to be furnished of employees for the payroll period [for eligibility] ending July 26, 1969." Petitioner now contends that the quoted lan- guage precludes the agreement from being a final and binding agreement regarding eligibility, either in the case of the five above-mentioned employees whose names were specifically included on the July 23 eligibility list or in the case of employee Bailey, whose name was later added by the Employer. We find no merit in this contention except in the case of Bailey. In our opinion, the eligibility list executed by the parties on July 23, 1969, was clearly intended by the parties to have a final and binding effect in resolving the eligibility of the employees originally listed thereon. There was a mutuality of assent re- garding the status of such employees, which we hold is not negated simply because the parties also agreed to permit additions or corrections in the case of other employees whose names might be reflected or deleted by a complete payroll list for the payroll period of eligibility which ended on July 26, 1969. Initially, therefore, in agreement with the Regional Director, we find that the parties' stipula- tion that employees Bronner, Fletcher, Francis, Johnson, and Wheeler are eligible to vote is final and binding upon them. Employee Bailey, however, is another case. His name was added to the July 23 list by the Em- ployer, after that date, apparently because he ap- peared on the payroll ending July 26. Although Petitioner received a revised list from the Employer some 2 weeks before the election which list in- cluded Bailey's name, Petitioner made no objection to Bailey's inclusion until the preelection con- ference. The Regional Director apparently con- cluded that Petitioner's delayed failure to object to Bailey until the preelection conference precluded Petitioner from challenging Bailey's vote. In our view, the intent of the language permitting addi- tions or corrections to the July 23 eligibility list, once a complete payroll was available for the period ending July 26, 1969, is clear-to permit such additions and corrections only where the parties are in agreement as to the eligibility status of the individual being added or deleted. No provi- sion was made by the parties with regard to the procedure for resolving any disputed additions or corrections, and we cannot agree that Petitioner is foreclosed from challenging Bailey merely because it waited until the preelection conference to raise a question as to Bailey's status. Accordingly, we find that no final and binding agreement was reached by Petitioner and the Employer at any time with respect to the eligibility of Bailey. The exceptions to the Regional Director's recom- mendation that the ballot of Bailey be overruled raise substantial and material issues of fact which can best be resolved by a hearing, as in the case of Leonora Murphy, about whose eligibility the parties are also in dispute. However, as there is a possibili- ty that the five overruled challenges may be deter- minative of the election, we shall direct that the ballots of employees Bronner, Fletcher, Francis, Johnson, and Wheeler be opened and counted. If the revised tally discloses that the election result has not been determined, and that the two remain- ing challenged ballots of employees Bailey and Murphy would be determinative, we shall order a hearing on such challenged ballots. DIRECTION AND ORDER It is hereby directed that, as part of the investiga- tion to ascertain a representative for the purpose of collective bargaining with the Employer, the Re- gional Director for Region 9 shall, pursuant to the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, and within 10 days from the date of this Decision, open and count the ballots of Ellen Bronner, Mary Lucille Fletcher, Nola Francis, George Johnson, and Joyce Wheeler, the chal- lenges to which have been overruled herein, and shall thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said challenged ballots. If the tally discloses that the results of the election are determinative, and the remaining unresolved chal- lenges will not affect the results of the election, the Regional Director shall issue the appropriate cer- tification. However, if the results are not deter- minative after the aforementioned five ballots have been opened and counted, and the unresolved chal- lenges would be determinative, a hearing shall be held concerning the eligibility of employees Buford Bailey and Leonora Murphy. It is hereby ordered that in the event a hearing on the remaining two challenged ballots becomes necessary, the instant case is referred to the Re- gional Director for Region 9 for the purpose of ar- ranging a hearing before a Hearing Officer to resolve the issues raised by the challenges to the THE LEATHERWOOD COMPANY ballots of employees Buford Bailey and Leonora Murphy. IT IS FURTHER ORDERED that the Hearing Officer who is designated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recom- mendations to the Board as to the disposition of the 279 said issues. Within the time prescribed by the Board's Rules and Regulations, any party may file with the Board in Washington, D.C., an original and seven copies of exceptions thereto. Immediate- ly upon the filing of such exceptions, the party fil- ing the same shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hear- ing Officer.