Trilco City Lumber Co., Inc.

TRILCO CITY LUMBER Trilco City Lumber Co., Inc. and Retail Clerks Local 1360, chartered by Retail Clerks International Asso- ciation, AFL-CIO, Petitioner. Case 4-RC-12083 October 6, 1976 DECISION AND DIRECTION By CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 4 of the National Labor Relations Board, on April 12, 1976, an election by secret ballot was conducted on April 23, 1976, among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that, of ap- proximately 9 eligible voters, 9 cast ballots, of which 4 were for the Petitioner, 3 were against the Peti- tioner, and 2 were challenged. The challenged ballots were sufficient in number to affect the results of the election. Neither party filed objections to the con- duct of the election or to conduct affecting the re- sults of the election. The Regional Director investigated the two chal- lenged ballots and on May 28, 1976, issued his report and recommendation on challenged ballots. He rec- ommended that the challenges to the ballots of Peter Ortiz and Melvin T. Herder be sustained and that an appropriate certification of representative issue. The Employer filed exceptions and a supporting brief to the Regional Director's findings and recom- mendation with respect to Herder. 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 au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case, including the Regional Director's report and recommendation on challenged ballots, and the Employer's exceptions and brief, and hereby adopts the Regional Director's findings, conclusions, and recommendations,' as modified below. Prior to the election, the parties agreed on a list of eligible voters and entered into a written and signed agreement as follows: 1 In the absence of exceptions thereto, the Board adopts, pro forma, the Regional Director's recommendation that the challenge to the ballot of Pe- ter Ortiz be sustained. 289 Consistent with Norris-Thermador Corporation, 119 NLRB 1301, the undersigned Employer and Labor Organization agree that the eligibility list in Case No. 4-RC-12083 has been reviewed, that all issues as to eligibility to vote have been resolved, that all employees listed are eligible to vote in the election and that no employee not on the list is eligible to vote. It is further agreed that this list is to be final and binding on the parties. Melvin T. Herder, one of the challenged voters, was interviewed for a salesman's position on April 6, 1976, and was told that he could begin work immedi- ately. However, due to prior commitments, Herder was not able to start working until April 19. The elec- tion was held on April 23, with the payroll eligibility period the week ending April 6. Herder's name was included on the eligibility list approved by the par- ties. The Regional Director recommended that Herder be found ineligible to vote, notwithstanding the agreement of the parties, on the ground that it is con- trary to Board policy to permit voting by an employ- ee who has not been employed and working on both the eligibility cutoff and election dates. We do not agree. In Norris-Thermador Corporation, 119 NLRB 1301 (1958), the Board said 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 . . . a final determi- nation of the eligibility issues treated therein unless it is, in part or in whole, contrary to the Act or estab- lished Board policy." The customary basis for determining eligibility to vote in a Board election is neither a requirement of the statute nor a policy of the Board. It is a rule of administrative convenience, though a necessary and important one, to facilitate determination of eligibili- ty and to avoid disputes to the extent possible. How- ever, it may be waived by a specific agreement of the parties which meets the requirements of Norris-Ther- mador, supra. We therefore find no basis for not re- quiring the parties to adhere to their contractual agreement as to eligibility to vote in the election.2 Accordingly, we find, contrary to the recommenda- tion of the Regional Director, that Melvin T. Herder is an eligible voter and we shall direct that his vote be opened and counted. 2 Capitol Greyhound Lines, 49 NLRB 156, enfd. 140 F.2d 754 (C.A. 6, 1944). 226 NLRB No. 45 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION It is hereby ordered 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 Direction, open and count the ballot of Melvin T. Herder, and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballot, and thereafter issue the appropriate certification.