Brom Machine and Foundry Co.

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brom Machine and Foundry Co. and Stanley Grzy- bowski, Petitioner and International Molders & Allied Workers, AFL-CIO, CLC. Case 18-RD- 737 January 4, 1977 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, PENELLO, AND WALTHER Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered determinative challenges to an election held on May 21, 1976,1 and the Regional Director's report recommending dispo- sition of same. The Board has reviewed the record in light of the exceptions and briefs,' and hereby adopts the Regional Director's findings and recommenda- tions. As recognized by the Regional Director in his report, "It is established Board policy that the unit appropriate in a decertification election must be coextensive with either the certified or recognized bargaining unit." The existing recognized unit in this RD case, covered by the 1975-76 contract between Employer and Union, excluded the patternmakers and part-time janitor. Nevertheless, our dissenting colleague would include these employees in the decertification election unit herein on the ground that the parties stipulated to a production and mainte- nance unit for the purpose of the election, which included the patternmakers and part-time janitor. However, the stipulated unit does not make specific mention of patternmakers or the part-time janitor. They were excluded by agreement of the parties from the unit covered by the 1975-76 contract and were never mentioned in the negotiations for a new contract which were interrupted by this RD petition. It appears that the Union did not intend that they be included in the voting unit by virtue of the stipula- tion. Thus, a question exists over whether, when the stipulation was executed, there was in fact a meeting of the minds as to the unit placement of the patternmakers and part-time janitor. But even were there mutual agreement under the stipulation to include them in the voting unit, that would have created a unit for election purposes unlike the then 1 The election was conducted pursuant to a Stipulation for Certification Upon Consent Election entered into by the Employer, the Petitioner, and the Union, International Molders & Allied Workers, AFL-CIO, CLC. The tally showed that of approximately 39 eligible voters, 19 cast ballots for, and 17 against, the Union, with 3 challenged ballots. The challenged ballots were sufficient in number to affect the results of the election. 2 Westinghouse Electric Corporation, 115 NLRB 530 (1956). 227 NLRB No. 107 existing unit represented by the Union. Whatever effect given by the Board to stipulated units in representation elections, it would obviously frustrate the Board policy of directing decertification elections in the existing bargaining unit to .permit the parties to vary that unit and participate in an election in a different unit of their own choosing. Indeed, Section 9(c)(l)(A)(ii) of the Act itself does not sanction this. "Rather, as is clearly evident from the statutory language, that section of the Act was designed to provide a method for determining whether an existing unit of employees desire[s] to continue their current representation, and the Board is required to conduct an election thereunder only when a question is raised concerning such current representation in the existing unit." 2 Plainly, the conduct of a decertification election in a unit created for that purpose and different from the existing one represented by a union would not be a test of the decertification desires of employees regarding their current representation:3 As recommended by the Regional Director, there- fore, we sustain the challenges to the ballots of the employees who were not part of the existing unit represented by the Union at the time of the election. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for International Molders & Allied Workers, AFL-CIO, CLC, and that, pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All full-time and regular part-time production and maintenance employees; excluding office clerical employees, guards and supervisors as defined in the National Labor Relations Act, as amended. MEMBER WALTHER, dissenting: Upon the basis of a decertification petition, all parties entered into a stipulation for certification upon consent election which described the appropri- ate unit as follows: All full-time and regular part-time production and maintenance employees; excluding office clerical 3 Monroe, 190 NLRB 516 (1971), cited by the dissent, represents no departure from the Board's longstanding rule regarding the appropriate unit in decertification elections. The unit of Orange plant employees in which the decertification election was therein directed was the existing unit of Monroe's employees represented by the union, even if it was not, as the dissent notes, the unit covered by the most recent contract between respondent and the union. BROM MACHINE & FOUNDRY CO. 691 employees, guards and supervisors as defined in the National Labor Relations Act, as amended. At the election, the Union challenged the ballots of patternmakers Charles Andring and Harlan Wills and part-time-janitor Leon Brown on the ground that they were excluded by the parties from coverage under the recently expired collective-bargaining con- tract between the Employer and the Union. The Regional Director sustained the challenges on the basis that in a decertification election the appropriate unit must be coextensive with either the certified or recognized bargaining unit and the three challenged voters were not included in the recognized bargaining unit. In my opinion, the Regional Director used the wrong test in determining the eligibility of the challenged voters and therefore reached a wrong conclusion. When parties stipulate to the appropriate unit "the Board may not alter the unit; its function is limited to construing the agreement according to contract principles, and its discretion to fix the appropriate bargaining unit is gone."4 It is true that the Board may refuse to give effect to an agreement of the parties "where to do so would run counter to a fundamental principle of national labor policy." 5 But that is not the case here. The majority asserts that there was no meeting of the minds as to the inclusion of patternmakers and janitors in the unit inasmuch as the stipulation does not specifically mention patternmakers and janitors. It is elementary that when parties have embodied their understanding in a -written document it is the latter and not the secret intention of one or the other parties which determines the meaning to be ascribed to the agreement. The test is objective; i.e., what reasonable persons in the position of the -parties would have thought the written terms meant. Willis- ton on Contracts, 3d ed., § 610. In the Board's experience patternmakers and janitors are clearly encompassed by the phrase "production and mainte- nance employees." " If the Union intended to exclude patternmakers and janitors from the unit, it should have insisted that they be listed as excluded. Nor is there any merit, in my opinion, in the majority's apparent holding that there is a statutory ,4 Tidewater Oil Company v. N.LRB, 358 F.2d 363, 365 (C.A. 2, 1966). Accord: N.LR.B. v. Midwest Television, Inc., Station WMBD-AM-FM-T , 370 F.2d 287 (C.A. 7,1966), N L.R.B. v. J J. Collins' Sons, Inc., 332 F.2d 523 (C.A. 7, 1964). 5 Tidewater Oil Company v. N.LRB, supra at 366. 6 Monroe, 190 NLRB 516 (1971). The majority says that Monroe does not represent a departure from the Board's longstanding rule regarding the necessity that the appropriate unit in a decertification election must be exactly identical with the existing unit. A decertification petition is one of three methods outlined by Section 9(c)(1) for initiating a question concerning representation. However, the Act "makes no distinction between certification and decertification proceedings insofar as appropriate units are concerned." Illinois Bell Telephone Compa- ny, 77 NLRB 1073, 1076 (1948). While the Board in decertification cases usually defines the appropriate unit in terms of the existing contract or certified unit, this is a result of a policy determination (with which I agree) and not of a statutory mandate. Westinghouse Electric Corporation, 115 NLRB 530, 532 (1956). There is no policy reason why the Board should not approve the unit stipulated by the parties in this case. The Board, properly through its authorized Region- al Director, approved the stipulation for certification upon consent election. It is too late to withdraw that approval now. - This is especially true since any withdrawal would be based on the Board's supposition that there may not have been a meeting of the minds, when the stipulation itself was clear and unambiguous. The three challenged voters are production and maintenance employees and therefore clearly covered by the description of inclusions in the unit. The fact that they were excluded from the coverage of the recently expired collective-bargaining contract and included in the stipulated unit does not violate any statutory policy; none of the challenged voters is a supervisor. Although the general rule as to unit in a dispute situation is as stated by the Regional Direc- tor, the Board has itself on occasion departed from the rule and has found appropriate a unit different from the certified or bargaining unit .6 Moreover, the stipulated unit is appropriate even according to the Regional Director's standard, for this unit is identical with the unit for which the Union was certified in 1974 following an election in which Andring; Wills, and Brown voted without objection. As I consider that the Board majority has errone- ously affirmed the disqualification of the three challenged voters, I dissent. appropriate unit in a decertification election because the unit found appropriate in the decertification election was the "existing unit of Monroe's employees represented by the Union." That was not the finding of the Board which said (190 NLRB at 518): "the unit found appropriate herein is not the same as the unit covered by the most recent contract between Respondent and the Union " [Emphasis supplied.]