Giummarra Electric, Inc.

GIUMMARRA ELECTRIC INC 37 Giummarra Electric, Inc and Local 400, Interna tional Brotherhood of Electrical Workers, AFL- CIO, Petitioner Case 4-RC-16670 September 28 1988 DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board by a three member panel has considered determinative chal lenges in an election held November 17 1987 and the Regional Directors report recommending dis position of them The election was conducted pur suant to a stipulated election agreement The tally of ballots shows seven for and five against the Peti tioner with four challenged ballots The Board has reviewed the record in light of the Employers exceptions and brief and has adopted the Regional Directors findings and rec ommendations only to the extent consistent with this Decision and Order In his report the Regional Director recommend ed that a hearing be held with respect to three of the four voters whose ballots were challenged Re garding the fourth voter Joseph Beyer the Re gional Director recommended the challenge to his ballot be sustained The Employer has excepted to all of these recommendations essentially arguing that the challenges to all four voters should be overruled We agree with the Regional Director that a heanng is required with respect to the chal lenged ballots of Charles Visco Timothy Wright and William Hopei We find however that the Employers exceptions raise substantial and materi al issues concerning the merits of Beyer s eligibility to vote in the election and that a hearing is war ranted to resolve them The Regional Director concluded that at a joint conference held at the Regional Office the Em ployer and the Petitioner orally agreed that Beyer was not eligible to vote Consequently the Region al Director found that Beyer is ineligible to vote under the Banner Bedding2 exception to the Norris Thermador3 requirement of a wntten signed and ' The Petitioner challenged the right to these three individuals and Beyer to vote on the ground that they were outside the unit and there fore ineligible to vote On April 29 1988 the Regional Director issued a complaint in Case 4-CA-17099 based on allegations that the Employer changed the job responsibilities of Visco and Wright to make them eligi ble to vote The Regional Director also determined that the resoluti3n of the challenge to William Hope s ballot might rest on the outcome of the issues in the unfair labor practice case as well 2 Banner Bedding 214 NLRB 1013 (1974) 3 Norris Thermador 119 NLRB 1301 (1958) The Board there deter mmed that it would consider a written and signed agreement which ex pressly provides that issues of eligibility resolved therein shall be final and binding upon the parties as a final determination of the eligibility issues express agreement setting forth the names of em ployees eligible to vote in the election The Re gional Director noted the omission of Beyer s name from the eligibility list submitted by the Employer as being consistent with the parties agreement The Employer takes issue with the Regional Di rector s finding that there was an agreement con cerning Beyer s eligibility to vote The Employer claims that the parties agreed to disagree on the eligibility of prospective voters and to defer reso lution of all questions of eligibility to postelection procedures The Employer notes in this regard that the parties did not enter into a signed eligibility agreement within the meaning of Norris Thermador (the Regional Director did not find to the con trary) and also asserts that the omission of Beyer s name from the submitted eligibility list is not dis positive of Beyer s eligibility to vote in the elec tion The Employer thus contends that Beyer s voting eligibility is before the Board for determma tion on the merits We agree Under the Norris Thermador rule a signed and w-itten agreement by parties to a representation election will be held binding as to voter eligibility matters covered by it (and thus will foreclose post election scrutiny under the community of interest test) so long as the agreement is not contrary to the Act or Board policy Under Banner Bedding supra an oral agreement on voter eligibility may also be held binding but this exception to the signed and written requirement applies only when there is unequivocal evidence acknowledged by both parties that they had orally agreed to ex clude or include the individual or individuals in question Cooper Mattress Mfg Co 225 NLRB 200 201 (1976) Accord NLRB v Westinghouse Broad casting 849 F 2d 15 19 (1st Cir 1988) In the instant case the Employer denies that an oral agreement was reached to exclude Beyer from voting in the election Thus there is no unequivo cal evidence acknowledged by both parties that the parties agreed to Beyer s exclusion and there fore this case clearly falls outside of the Banner Bedding exception Nor is there any other proce dural basis for finding that the parties agreed to ex clude Beyer from participating in the election The mere omission of Beyer s name from the eligibility list does not amount to a Norris Thermador binding agreement 4 Furthermore the express language of treated therein unless the agreement is contrary to the Act or Board policy 4 See Cooper Mattress supra 225 NLRB at 201 holding that the par ties initialing of a footnote on the standard election eligibility list indicat ing that a voter was to be excluded did not rise to the level of a Norris Thermador binding agreement 291 NLRB No 3 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the stipulations unit description leaves unclear the parties intentions with respect to Beyer s unit status that is whether he as a specific individual was in or out of the units Beyer s eligibility there fore must be determined using our traditional com munity of interest principles Accordingly we shall remand this proceeding to the Regional Director for a hearing to determine if Beyer shares a community of interest with the unit employees-and hence is eligible to vote in the election Included of course in such a determine tion is resolution of the question of whether Beyer is an employee or an independent contractor ORDER It is ordered that a hearing be held to resolve the community of interest issues raised by the chal lenge to the ballot of Joseph Beyer IT IS FURTHER ORDERED that the hearing on the challenge to the ballot of Joseph Beyer be part of any hearing yet to take place on the challenges to the ballots of William Hope Charles Visco and Timothy Wright 6 In the event a hearing on those three individuals has occurred the hearing shall be reopened to take evidence on Joseph Beyer s status IT IS FURTHER ORDERED that the manner is re manded to the Regional Director for Region 4 for the purpose of arranging that hearing and that the Regional Director is authorized to issue notice of the hearing IT IS FURTHER ORDERED that the hearing officer designated to conduct that hearing shall prepare and cause to be served on the parties a report con taming resolutions of credibility of witnesses, find ings of fact and recommendations to the Board as to the disposition of the issues involved Within 10 days of the date of issuance of that report either party may file with the Board in Washington D C eight copies of exceptions to it Immediately upon the filing of such exceptions the party filing the exceptions shall serve a copy of them on each of the other parties and shall file a copy with the Regional Director If no exceptions are filed the Board will adopt the recommendations of the hear ing officer 7 8 The unit includes All full time and regular part time employees in cluding residential and service electricians mechanics finishers and help ers employed by Guimmarra Electric Inc at its Forked River New Jersey facility Excluded are All office-clerical employees professional employees guards and supervisors as defined by the Act The Employer contends that Beyer is a rougher electrician The Pe titioner does not appear to contest his electrician status but claims he is an independent contractor 6 We note that the Regional Director stated in his report that he in tends to consolidate Case 4-RC-16670 with the unfair labor practice hearing in Case 4-CA-17099 ? In the event the Regional Director consolidates this proceeding with Case 4-CA-17099 for heanng before an administrative law judge Sec 102 46 of the Board s Rules and Regulations shall apply with respect to the filing of exceptions rather than the above procedure