Pyper Construction Co.

PYPER CONSTRUCTION COMPANY Pyper Construction Company and Laborers' International Union of North America, Local No. 1410, AFL-CIO, Petitioner. Case 9-RC-7905 June 30, 1969 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, BROWN, AND ZAGORIA Pursuant to a Stipulation for Certification upon Consent Election, an election by secret ballot was conducted on October 15, 1968, under the direction and supervision of the Regional Director for Region 9, among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished with a tally of ballots, which showed that of approximately 22 eligible voters, 22 ballots were cast, of which 11 were for, 10 against the Petitioner, and 1 ballot was challenged. The challenged ballot was sufficient in number to affect the results of the election. On October 21, 1968, the Employer filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation and, on March 10, 1969, issued and duly served upon the parties his Report on Challenged Ballots and Objections to Election, recommending that the Employer's objections be overruled in their entirety. The Regional Director further recommended that the challenged ballot be opened and counted. Thereafter, on April 7, 1969, the Employer filed a timely exception to the Regional Director's Report insofar as it recommended that the Board overrule objection No. 1, which alleged that the Petitioner violated the 24-hour rule in the Peerless Plywood case.' The Petitioner filed a timely exception to the Regional Director's Report insofar as it recommended that the challenged ballot be opened and counted.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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, and it will effectuate the purposes of the Act to assert jurisdiction herein. 'Peerless Plywood Company, 107 NLRB 427. 'The Employer also filed a motion pursuant to Sec 102.69 of the Board' s Rules and Regulations , Series 8, as amended, seeking a notice of hearing with respect to the issues raised by the Petitioner's exceptions and brief, the Employer' s answering brief, and the report and recommendation filed by the Regional Director . Upon due consideration of the Petitioner's exceptions and brief, the Employer's answering brief and objection, the Regional Director's Report and Recommendation , the Board denies the motion on the grounds that such pleadings do not raise substantial and material issues with respect to the conduct or results of the election. 707 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. - A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. In accordance with the stipulation of the parties, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All laborers employed by the Employer out of its Centerville, Ohio facilities, but excluding all equipment operators under contract with Local 18, International Union of Operating Engineers, AFL-CIO, all office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees. 5. The Board has considered the Regional Director's Report, the Employer's exception, the Petitioner's exception to the Regional Director's report on the challenged ballot, and the entire record in the case, and finds as follows:' The Petitioner excepted to the Regional Director's recommendation that the ballot of Ernest L. Jones be opened and counted. On September 30, 1968, the parties incorporated a Norris Thermador' eligibility list containing the names of 22 employees into the consent-election agreement. The eligibility list was on company stationery, and contained the name, address, and social security number of the eligible employees. In addition, the list contained a handwritten statement signed by the parties providing that: The above listed employees of the Employer are agreed to be the only employees eligible to vote in Case No. 9-RC-7905 in the election to be conducted on October 15, 1968, and the parties agree that by signing this list they are making disposition of all questions of eligibility and this resolution is final and binding on them. During the course of the election the ballot of Ernest L. Jones was challenged by the Board agent because Jones' name did not appear on the eligibility list. Jones began his employment as a laborer for the Employer on July 1, 1968. He continued such 'No exception having been taken thereto , we adopt the Regional Director's recommendation overruling Employer's objections 2 and 3. The Employer's exception to the Regional Director's ruling on its objection I raises no material or substantial issue of fact or law that warrants reversal of the Regional Director's recommendation. '119 NLRB 1301. The Board stated that parties to a representation proceeding should be permitted to resolve definitively as between themselves issues of eligibility prior to the election if they clearly evidence their intention to do so in writing The Board concluded that where the parties enter into a written and signed agreement which expressly provides that issues of eligibility resolved therein shall be final and binding upon the parties, the Board will consider such an agreement , and only such an agreement, a final determination of the eligibility issues treated therein unless it is, in part or in whole, contrary to the Act or established Board policy. 177 NLRB No. 91 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment until September 14, 1968, when he was incarcerated. On or about September 19, 1968, Jones' wife informed him that his brother Herman Jones, a foreman of the Employer, had told her that Jones still had a job and could return to work upon his release from jail. The Employer personally contacted the judge who had sentenced Jones and requested that Jones be released from jail, approximately 10 days before his 20-day sentence was completed. The Employer also advised the Court that Jones had a job and could return to his employment immediately upon his release. Jones was released from jail on October 6, 1968, and he returned to his prior position with the Employer on October 12, 1968. The Regional Director found that the Norris Thermador rule is directed only at those eligibility issues discussed and agreed to by the parties involved, and that Jones' name was not on the list and he was not discussed at the time the list was prepared and signed by the parties herein. He found further, that Jones was omitted from the eligibility list through the inadvertence of an office employee, and that it would be contrary to Board policy to disenfranchise an employee when his eligibility vote was never discussed. We disagree. The Board will honor concessions made in the interest of expeditious handling of representation cases, even though there may be some question about including certain employees in the unit, or excluding them from it, were the matter litigated.' Here the eligibility list drawn up by the parties conforms to the requirements set forth by the Board in Norris 'Stanley Aviation Corporation, 112 NLRB 461 Thermador, since the parties entered into a written and signed agreement which expressly provided that issues of eligibility resolved therein shall be final and binding upon the parties. Contrary to the Regional Director's finding, we deem irrelevant the fact that Jones may have been excluded from the eligibility list through inadvertence and not as the result of discussion and agreement on his eligibility. We find that the parties intended that the eligibility list be final and binding. Accordingly, contrary to the Regional Director we shall sustain the challenge to Jones' ballot. Since we have sustained the Regional Director's recommendation to overrule the Employer's objections, and as the tally of ballots shows that the Union has received a majority of the valid votes cast in the election, we shall certify the Union as bargaining representative. CERTIFICATION OF REPRESENTATIVE It is hereby certified that Laborers' International Union of North America, Local No. 1410, AFL-CIO, has been designated and selected by a majority of the employees of the Employer in the unit found appropriate herein as their representative for the purposes of collective bargaining and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all such employees for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment.