Laymon Candy Co.

LAYMAN CANDY COMPANY 547 Laymon Candy Company and Bakery & Confectionery Workers International Union of America, AFL- CIO, Petitioner. Case 31-RC-1763 October 6, 1972 DECISION AND CERTIFICATION OF REPRESENTATIVE Pursuant to stipulation for Certification Upon Con- sent Election executed by the parties, and approved by the Regional Director for Region 31 of the Na- tional Labor Relations Board on July 16, 1971, an election by secret ballot was conducted in the above- entitled proceeding on August 25, 1971, under the direction and supervision of the said Regional Direc- tor. Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with the Board's Rules and Regulations, Series 8, as amended, which showed that there were approximate- ly 37 eligible voters, and that 34 cast ballots of which 16 were for Petitioner, 15 were against Petitioner, 2 were challenged, and 1 was void. No objections to the elections were filed. Inasmuch as the challenged ballots were suffi- cient in number to affect the results of the election, the Regional Director caused an investigation to be made. Thereafter, on December 23, 1971, the Region- al Director issued and served on the parties his Report on Challenged Ballots, recommending that the chal- lenge to the ballot of Ken Laymon be sustained, and that a hearing be held to determine the eligibility of Ralph Carlos. No exceptions were filed by the parties within the time provided therefor. Accordingly, in an order directing hearing issued January 10, 1972, the Board adopted the recommendation of the Regional Director, sustained the challenge to the ballot of Ken Laymon and directed a hearing to resolve the issues raised by the challenge to the ballot of Ralph Carlos. Pursuant thereto, a hearing was held on February 10, 1972, before Hearing Officer Philip R. LeVine and, thereafter, on March 29, 1972, the Hearing Officer issued and duly served on the parties his report on challenged ballot with findings and recommenda- tions. The Employer thereafter filed exceptions there- to. 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. 2. The Petitioner is a labor organization claiming to represent employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Em- ployer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All regular full time and part time production and maintenance employees including cooks, helpers, packers, dippers, shipping and receiving clerks, and leadmen employed by the Employer at its plant located at 444 Colton Avenue, Colton, California; excluding all office clerical employ- ees, salesmen, professional employees, guards, and supervisors as defined in the Act. 5. The Board has considered the Hearing Officer's report, the Employer's exceptions and brief, and the entire record in this case, and hereby adopts the Hearing Officer's findings' and recommenda- tions 2 to sustain the challenge to the ballot of Ralph Carlos because of his supervisory status. Accordingly, as the tally of ballots shows that the Petitioner has received a majority of the valid votes cast, we shall certify it as the exclusive bargaining representative for the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots has been cast for Bakery & Confectionery Workers International Union of America, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor or- ganization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other condi- tions of employment. i The Employer excepts to various findings of the Hearing Officer on the ground that he erred in discrediting certain testimony. It is the established policy of the Board not to overrule a Hearing Officer's credibility resolutions unless the clear preponderance of all of the revelant evidence convinces us that the resolutions were incorrect Connor Trading Company, Inc, 188 NLRB No 43, In. 4, The Coca-Cola Bottling Company of Memphis, 132 NLRB 481. We find no sufficient basis for disturbing the credibility reso- lutions in this case. 2 Chairman Miller and Member Jenkins share the concern of their dissent- ing colleagues that preelection agreements be accorded finality, whether reached at a hearing, as in Cruis Along Boats, Inc., 128 NLRB 1019, or at a conference, as here They would distinguish the instant case from Cruis Along, not on the basis of when or where the stipulation was amved at, but on the basis of the nature of the stipulation . The stipulation or agreement here was only as to the ultimate legal question of eligibility to vote, whereas the stipulation in Cruis Along was a factual stipulation as to the duties and authority of the individuals involved Member Fanning finds it unnecessary to distinguish Cruis Along Boats, since he dissented therein, and would not regard the Board as bound on a supervisory issue, either by the stipulation there or the agreement here. Moreover, he regards his colleagues ' apparent extension of the Cruis Along rule to Norris-Thermador eligibility lists as likely to lessen the attractiveness to the parties of entering In to written and binding agreements as to eligibility. 199 NLRB No. 65 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBERS KENNEDY and PENELLO, dissenting: The majority opinion in this case rejects the Employer's contention that the challenge to the ballot of Ralph Carlos on the ground he is a supervisor should not have been allowed. The Employer argues that the determination at this stage of the proceeding of whether or not he is supervisory is improper be- cause the parties agreed upon a final and binding eligibility list within the meaning of Norris-Thermador Corporation, 119 NLRB 1301,' which included his name as an eligible voter.4 We would sustain the Employer's contention and would direct that the bal- lot of Carlos be opened and counted. In this case the election was held pursuant to a Stipulation for Certification Upon Consent Election, and the Board has held that in these circumstances a challenge on the ground of statutory supervisory ex- clusion is permissible as within the exception to the Norris-Thermador rules On the other hand, however, where the parties in the course of a hearing stipulate that particular individuals do not have the authority to hire or fire, effectively recommend such action, or responsibly direct or assign employees in their work, the Board will not permit a party to repudiate such a formal stipulation which on its face and the facts of record does not contravene Board policy or statutory proscription and deems the parties bound thereby .6 We see no reason for the Board's past practice of honoring agreements concerning eligibility reached at 3 The rule as there stated is 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 " 4 The Hearing Officer rejected the Employer 's contention that the Board should not go behind the eligibility agreement and Norris-Thermador list on the ground that this was resolved by the Board in its order directing hearing. However, we do not consider the matter as having been resolved, inasmuch as that order was issued in the absence of exceptions to the Regional Director's recommendation that a hearing be held. Nor do we find that the failure to raise the issue at that time precludes the Employer 's taking its present position at this time, as it is clear that the acceptance of the challenge was in accord with existing practice. 5 Fisher-New Center Company, 184 NLRB No. 92. 6 Cruir Along Boats, Inc., 128 NLRB 1019. a hearing but failing to accord finality to similar agreements in a consent election situation. The con- siderations set forth in Cruis Along Boats are equally, if not more, applicable to the consent election in order to encourage expeditious resolution of questions con- cerning representation. To preclude stipulations dis- posing of unit placement or eligibility issues ignores the realities inherent in the informal resolution of such questions and strikes at the very heart of the consent election system. As indicated by their statement in footnote 2 of the principal decision, Chairman Miller and Member Jenkins agree with us that there should be no differ- ence and that a proper agreement concerning eligibility in a consent election situation should be accorded the same finality as the same stipulation at a hearing. As our differences relate only to what constitutes the proper form of the agreement, it is apparent that in all future elections pursuant to consent agreements, in order to achieve such finality the agreement on the Norris-Thermador list should be in the language ac- ceptable under Cruis Along Boats; i.e., that the listed individuals do not have or exercise the statutory su- pervisory authority. However, for purposes of the present case, we can see no reason for construing the affirmative agreement that the named individuals are eligible as any different in effect or intent from a negatively worded stipulation that the named individuals do not have or exercise such authority. Here the unit agreed upon excluded "supervisors as defined in the Act." In light of this, the agreement that individuals are eligi- ble inherently includes the agreement that they do not exercise the statutory functions and do not fall within the statutory definition. Accordingly, both forms of agreement concern the same ultimate facts-the non- existence of the functions set forth in the Act. There- fore, we would accord the same legal effect to the agreement in the present case and would not review Carlos' status in this proceeding for purpose of decid- ing his eligibility, but would direct that his ballot be opened and counted and that the Regional Director issue a revised tally of ballots and appropriate certifi- cation based thereon.