Southampton Marine Corp.

SOUTHAMPTON MARINE CORPORATION Southampton Marine Corporation and Teamsters Union 158 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 4-RC-11252 April 30, 1975 DECISION AND DIRECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Pursuant to authority granted the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered determinative challenges in an election held November ,6, 1974,' and the Regional Diirector's report recommending disposition of same. The Board has reviewed the record in light of the ex- ceptions and briefs, and hereby adopts the Regional Diirector's findings and recommendations, only to the extent consistent herewith. The Board does not adopt the Regional Director's recommended disposition of the ballot of employee Is- mael Ortez Crespo. That ballot was challenged by the Employer on grounds that his name did not appear on the eligibility list as agreed to by the parties on October 22, 1974,2 under the terms of the Board's decision in Norris-Thermador Corporation, 119 NLRB 1301 (1958). However, the Excelsior` list submitted by the Employer on October 25 included Crespo's name and address with the notation: "Not on the list that was presented on 10/22/74 to the Board. This was due to an oversite [sic] on our part." The Petitioner then promptly requested that Crespo's name be added to the list of eligibles, but the Employer refused to do so. The Regional Director sustained the challenge to Crespo's ballot finding that as the parties' October 22 agreement met the Norris-Thermador criteria, it was therefore, final and binding on the issue of voter eligibil- ity; and that under the holding of the Board in Pyper Construction Company, 177 NLRB 707 (1969), the inadvertent omission of a challenged voter employee from such a list would not affect the list's finality and exclusivity as a determinant of voter eligibility. It is of course true that the Board does not look with favor upon the use of its challenged ballot procedures as a means of undermining the effect of a voter eligibil- ity agreement executed by the parties in accord with the Norris-Thermador case requirements. Accordingly, and as indicated by the Pyper case, supra, the Board I The election was conducted pursuant to a stipulation for certification upon consent election The tally was: 17 for and 18 against the Petitioner; there were 3 challenged ballots. 2 Unless otherwise stated, all dates are 1974. 3 Excelsior Underwear Inc., 156 NLRB 1236 (1966). 649 will not usually resolve disputed issues concerning any omissions from the agreed-upon eligibility list, and will, therefore, ordinarily reject a party's attempt to raise such issues, without regard to merit, and sustain a chal- lenge to the ballot of any employee whose name did not appear on that list. Here, however, there is no dispute concerning Cres- po's eligibility as a voter; there is no question that the parties recognized that the failure to so identify Crespo on the written eligibility list was a mistake; and there is also no question that the mistake was called to the Board's attention more than 10 days before the election was held, and that the challenge procedure was used because the error had not been rectified (as it could have been) before the election was conducted. We perceive no sound policy reasons for sustaining the challenge to an employee's ballot in such circum- stances, thereby depriving him of the right to cast a ballot to which all parties conceded he was entitled. We do not believe that Norris-Thermador was in- tended to deprive an otherwise eligible voter of his ballot when the inadvertence of excluding his name from the list was admitted and discovered in enough time to amend the agreement to include the employee, without any disruption of the election procedures, and where the parties in effect were agreed that the em- ployee's name would have been included on the list but for such an error.' Consequently, we overrule the challenge to Crespo's ballot, and direct that the ballot be opened. DIRECTION It is hereby directed that the Regional Director for Region 4 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Order, open and count the ballots of Ismael Ortez Crespo, Jacinto Valdes, and John Cart- wright, and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of such ballots, and to proceed further to issue the appropriate certification for the following appropriate unit: All production and maintenance employees, truckdrivers, receivers, warehousemen, working leaders and research and development employees at its one plant in Berlin, New Jersey; excluding, all office clerical employees, guards and supervi- sors as defined in the Act. 4 Cf Banner Bedding, Inc, 214 NLRB No. 139 (1974). 217 NLRB No. 113