Stop 127, Inc.

STOP 127, INC. Stop 127, Inc. and Bartenders', Motel, Hotel and Restaurant Workers, Local No. 222, Affiliated With the Hotel and Restaurant Employees' and Bartenders' International Union, AFL-CIO. Case 9-RC-7563 June 26, 1968 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA Pursuant to a Stipulation for Certification Upon Consent Election entered into by the parties and approved by the Regional Director for Region 9, on January 17, 1968, an election by secret ballot was held on January 31, 1968, among certain em- ployees of the Employer at Eaton, Ohio, under the direction and supervision of the Regional Director. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that, of approximately 45 eligible voters, 41 cast ballots, of which 20 were for, and 20 against, the Peti- tioner, and I ballot was challenged. There were no void ballots. The challenged ballot was sufficient to affect the results of the election. Thereafter, on February 5, 1968, the Petitioner filed timely objections to the conduct affecting the results of the election. In accordance with the Na- tional Labor Relations Board Rules and Regula- tions, the Regional Director conducted an in- vestigation and, on April 18, 1968, issued and duly served upon the parties his report on objections to election and challenged ballot. He found that Michael Brittain was challenged by the Board agent conducting the election on the ground that his name did not appear on the list of eligible voters. The Regional Director, reserving any ruling on Petitioner's objections to the election, concluded that a substantial and material issue as to the voting eligibility of similarly situated employees had been raised by his investigation of the challenged ballot of Michael Brittain and recommended that the Board declare the election of January 31, 1968, void, set aside said election and the Stipulation for Certification Upon Consent Election, and direct a representation hearing before a Hearing Officer of the Board. On April 24, 1968, the Employer timely filed ex- ceptions to the Regional Director's report on objec- tions to election and challenged ballot. 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 ' Excelsior Underwear Inc., 156 NLRB 1236 172 NLRB No. 41 289 powers in connection with this case to a three- member panel. The Board has considered the entire record with respect to the issues raised by the Employer's ex- ceptions to the Regional Director's report on objec- tions to election and challenged ballot and makes the following findings: A stipulation was executed by the parties on January 11, 1968, and approved by the Regional Director on January 17, 1968. The stipulation did not specifically provide for either the inclusion or exclusion of casual employees in the bargaining unit. However, at the time the stipulation was ex- ecuted, the parties had orally agreed to exclude all casual employees, including Brittain. At the time, the oral understanding was not reduced to writing nor did the parties prepare or append to the stipula- tion a list of eligible voters. The Employer sub- mitted a list of employees in conformity with the Board's Excelsior' decision to the Regional Director which was served upon the Petitioner and was to serve as the list of eligible voters at the election. The list did not contain the names of the Em- ployer's casual employees. At the time of the election, Brittain, whose name was not on the list of eligible employees and who was 1 of approximately 12 casual employees similarly situated according to the Regional Director, sought to vote. The Board agent chal- lenged Brittain's vote because he was not on the eligibility list. At the conclusion of the voting, but prior to the counting of the ballots, the Board agent sought to resolve Brittain's challenged ballot. The parties then agreed in writing that Brittain's ballot would remain challenged, and they signed a state- ment on the back of Brittain's challenged ballot en- velope which provided: "Parties agree that this em- ployee is ineligible to vote." Brittain's ballot is determinative of the results of the election. Thereafter, the Petitioner took the position that while initially consenting to Brittain's ineligibility as a casual employee, upon later investigation it deter- mined that he was a qualified voter and, therefore, he should have been permitted to vote. In support, Petitioner submitted a statement from Brittain in which he stated he was a regular employee of the Employer and submitted records of Brittain's earnings for the period from September 20, 1967, to January 30, 1968. The Employer contended that Brittain is a casual employee, that he is a high school student and must have a permit in order to be so employed, that he has no regular schedule of hours of employment, that he does not report to work without specific 354-126 O-LT - 73 - pt. 1 - 20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD direction from the Employer, who either calls him requesting that he report to work at a given time on the weekend, or notifies him that work is available when he has, on occasion, stopped at the Em- ployer's place of business on his way home from school. The Employer urges that the Petitioner should not be able to withdraw from the agreement as to the eligibility of Brittain because the Peti- tioner presumably was aware of his status, and reaf- firmed its position as to his ineligibility in writing at the time of the election. Moreover, the Employer also submitted copies of timecards of 11 other so- called casual employees together with the number of hours they worked on a weekly basis and their job descriptions. It contended that if Brittain was eligible to vote, the 11 other employees who have the same employment and, therefore, eligibility status as Brittain, should also have been entitled to vote in the election. The Regional Director concluded that from an examination of the timecards submitted by the Em- ployer and Brittain's earning records submitted by the Petitioner, that Brittain was substantially and regularly employed as opposed to casually or tem- porarily employed, and further, that the timecards of the 11 other so-called casual employees, who (like Brittain) were also excluded from the eligibili- ty list, show that at least some of the 11 were also substantially and regularly employed. The Employer excepted to the Regional Director's failure to sustain the Board agent's chal- lenge to Brittain's ballot and his failure to certify that a majority of the ballots had not been cast for the Petitioner. It also contended that if casual em- ployees should have been included in the collec- tive-bargaining unit, then the petition should have been dismissed initially for lack of an adequate showing of interest, a contention which we view as without merit in view of the voting results. The Board has a "well established policy of honoring concessions made in the interest of ex- peditious handling of representation cases," even though there may be some question of the ultimate propriety of including certain employees in the unit were the matter litigated.2 The Board also has a policy of not including temporary or casual em- ployees in bargaining units unless the parties agree to include them.3 Here the parties orally agreed to exclude casuals, and specifically discussed student Brittain as a casual, and then, when he alone of the so-called casuals voted, the parties in effect af- firmed their agreement in writing, before tally of the ballots, by their inscription on the challenge en- velope. In these circumstances and at this postelec- tion stage of the proceeding, we consider it contra- ry to good administrative practice to void the elec- tion and the Stipulation for Certification Upon Consent Election entered into by the parties, and now hold a representation hearing on the question of unit placement of casual employees. Ac- cordingly, we shall sustain the challenge to Brit- tain's ballot and refer the case back to the Regional Director to consider the Petitioner's objections to the election, which the Regional Director found it unnecessary to reach pending disposition of the bal- lot issue. ORDER It is hereby ordered that the proceeding be, and it hereby is, remanded to the Regional Director for Region 9 so that he may investigate the Petitioner's objections and thereafter issue his report in regard thereto. ' Stanley Aviation Corporation, I I2 NLRB 461 ' B J Carnev Co, 157 NLRB 1285