Prior Aviation Service, Inc.

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prior Aviation Service, Inc. and Communications Workers of American, AFLr-CIO, Petitioner. Case 3-RC-6201 September 19, 1975 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 3 of the National Labor Relations Board on January 7, 1975, an election by secret ballot was conducted in the above-entitled proceeding on January 23, 1975, un- der the direction and supervision of said Regional Director. Upon conclusion of the election, a tally of ballots was furnished the parties which showed that, of approximately 18 eligible voters, 18 ballots were cast, of which 9 were for, and 9 were against, the Petitioner. There were no challenged ballots. On Jan- uary 29, 1975, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations Series 8, as amended, the Regional Director investigated the objections and on March 5, 1975, duly served on the parties a Re- port on Objections in which he found merit in Objec- tion 2 and recommended that a new election be held. He further recommended that, in the event the Board did not find merit in Objection 2, a hearing be direct- ed by the Board on the issues raised by Objection 1. The Employer has filed timely exceptions to the Re- gional Director's report and a supporting brief. 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 purpose of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time aircraft me- chanics and service employees employed by the Employer at its Cheektowaga, New York facility excluding all office clerical employees, profes- sional employees, guards and supervisors as de- fined in the Act. 5. The Board has considered the Regional Director's report, the Employer's exceptions and brief, and the entire record in this case, and hereby adopts the Regional Director's findings, conclusions, and recommendations only to the extent consistent herewith. At the time the consent election agreement was executed, the parties signed a Norris-Thermador I stipulation with respect to eligible employees. Don- ald Meyer and David Bain were among the employ- ees agreed to be eligible voters. At the preelection conference held by the Board agent conducting the election, no issue was raised by the Petitioner with respect to the eligibility of either Meyer or Bain, and both voted unchallenged ballots. Thereafter, the Peti- tioner filed two objections to the election. Objection I asserts that Meyer was an ineligible voter by reason of his supervisory status. Objection 2 asserts that Bain was an ineligible voter by reason of his being a relative of the Employer's president. The Regional Director states that his investigation with respect to Objection I is inconclusive as to Meyer's supervisory status, and he recommends that a hearing be con- ducted in the event the Board does not adopt his recommendation on Objection 2. The Regional Di- rector finds that Bain was an ineligible voter and rec- ommends that Objection 2 be sustained and that a new election be directed. We find merit in the Employer's exception to the Regional Director's recommendation. In not follow- ing the Board's longstanding policy with respect to objections in the nature of postelection challenges, the Regional Director relies on the following facts in his report: The investigation revealed that about a week prior to the date of the election, the Petitioner raised a question as to the eligibility of Bain to the Board Agent who had held a consent confer- ence on January 7. Subsequently, the Board Agent informed the Petitioner that the Board Agent who would be conducting the election 'would be instructed not to allow a challenge to Bain's vote by the Petitioner, in view of the fact that the Petitioner had agreed to the Norris- Thermador eligibility list which contained Bain's name. Although the Regional Director's report does not in- dicate that the Employer was contacted by the Board agent, it appears from the Employer's brief that the Board agent did contact the Employer's attorney and advise that the Petitioner had questioned Bain's eligi- bility. The attorney advised that the Employer was 1 Norris- Thermador Corporation, 119 NLRB 1301 (1958). 220 NLRB No. 70 PRIOR AVIATION SERVICE, INC. willing to have the consent election agreement set aside and to proceed to a hearing on any issue of eligibility. The Board agent replied that he would check on the matter. The attorney heard nothing fur- ther from the Board agent and no eligibility issue was raised in the preelection conference by either the Pe- titioner or the Board agent conducting the election. The facts presented with respect to Objection 1 are (1) the parties agreed in the Norris-Thermador stipu- lation that Meyer was an eligible voter, and (2) there is no evidence or contention that the Petitioner raised any issue with respect to Meyer's eligibility other than in this postelection objection, or that the Board agent informed Petitioner that it could not challenge Meyer as a supervisor by reason of the Norris-Ther- mador stipulation.' The Board has long held that it will not entertain postelection challenges, or objec- tions which are in the nature of postelection chal- lenges.; There is no justification for departing from this traditional policy with respect to Objection 1. Accordingly, we do not agree with the Regional Director's recommendation that Objection 1 requires a hearing, and we hereby overrule the objection. With respect to Objection 2, the Regional Director found that Bain was an ineligible voter under Section 2(3) of the Act. Bain's mother is married to the Employer's president. Section 2(3) has no application to this type of stepson relationship.4 Accordingly, Bain's eligibility does not involve a statutory exclu- sion, but rather a determination of his community of interest or lack of community of interest with other employees in the unit. We deem it unnecessary to decide whether, in the absence of the Norris-Therma- dor agreement, the Board would have found such community of interest or lack of community as to warrant his inclusion or exclusion from the unit.' Where, as here, the eligibility agreement drawn up by the parties conforms to the requirements set forth by the Board in Norris-Thermador no circumstances are 2 The Regional Director cites Fisher-New Center Company, 184 NLRB 809 (1970), which involves ballots being challenged on grounds of supervisory status, but which were counted on the basis of representations by the Board agent that the Norris-Thermador stipulation was irrevocable even as to a challenge based on a supervisory status. That decision is not appropriately applied to a factual situation in which the asserted supervisor is not chal- lenged or his eligibility even questioned and the question of whether a chal- lenge could be made on the basis of a supervisory status was not even raised at the election. D N.L.R.B. v. A J Tower Company, 329 U.S 324 (1946); Oppenheim Col- lins & Co., 108 NLRB 1257 (1954); Corral Sportswear Company, 156 NLRB 436, fn . 4 (1965); Crown Machinery Company, Inc, 205 NLRB 237 (1973) 4Cf. Cerni Motor Sales, Inc, 201 NLRB 918 (1973) 5 However, we note that the Regional Director makes no finding that Bain enjoys any special privileges by reason of his relationship to the Employer's president See American Chemical Corporation, 215 NLRB No 21 (1974); Cherrin Corporation v N L R B, 349 F.2d 1001 (C.A. 6, 1965) The extent to which Bain is dependent on his stepfather for support is not clear. He receives his deceased father's social security benefits and a trust fund provides for his education. 461 presented warranting departure from the Board's practice of honoring "concessions made in the inter- est of expeditious handling of representation cases, even though there may be some question about in- cluding certain employees in the unit, or excluding them from it, were the matter litigated." 6 We find the Norris-Thermador stipulation binding on the parties as to the eligibility of Bain. According- ly, we do not view as prejudicial the advice furnished by the Board agent to the Petitioner with respect to challenging Bain's ballot. To permit a party to use his Norris-Thermador stipulation as a grounds for setting aside the election based merely upon his ex parte communications with a Regional Office employee' will only discourage parties from trying to resolve eligibility issues between themselves and proceeding promptly to an election rather than a hearing. We find that where a party does not intend to hon- or the signed commitment it has made under a Nor- ris-Thermador stipulation, it is obligated to give writ- ten notice to the other party of such intent. At the very least, this intent should be communicated to the other party no later than the preelection conference with the Board agent, rather than waiting until after the election is over and the results are known. A par- ty should not be permitted to use his own Norris- Thermador agreement as a basis for objections. In light of the foregoing, we find that the Petitioner's objections are impermissible postelection challenges. Accordingly, as the tally of ballots shows that the Petitioner has not received a majority of the valid ballots cast, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Communications Workers of America, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Rela- tions Act, as amended. MEMBER FANNING, concurring: I concur in the result. The challenges in question are postelection. Petitioner failed to challenge at the 6 Pyper Construction Company, 177 NLRB 707, 708 (1969) 7 The result is the same if, as stated by the Employer, the Board agent did advise that the Petitioner had called and was questioning Bain's eligibility. When the Board agent did not contact him further with respect to the offer to go to a hearing if there was any issue of eligibility, it could reasonably assume that the matter had been dropped The fact that no mention of any question of eligibility was made by the Petitioner at the preelection confer- ence would tend to verify this conclusion 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election though, in my view, it was entitled to do so MEMBER JENKINS, concurring in the result: despite the Norris-Thermador list because of the stat- I concur in the result reached by my colleagues, utory exclusion issues it was attempting to raise. because I would not accept postelection challenges.