Banner Bedding, Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1974

214 N.L.R.B. 1013 (N.L.R.B. 1974)

BANNER BEDDING, INC
Banner Bedding, Inc. and United Furniture Workers
of America, Local 1010, AFL-CIO, Petitioner.
Case 31-RC-2788
November 18, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and ap-
proved by the Regional Director for Region 31 of the
National Labor Relations Board on June 10, 1974,
an election by secret ballot was conducted in the
above-entitled proceeding on June 28, 1974, under
the direction and supervision of said Regional Direc-
tor. Upon the conclusion of the election, a tally of
ballots was furnished the parties which showed that
of approximately 26 eligible voters 27 ballots were
cast of which 13 were for, and 12 were against, the
Petitioner. There were two challenged ballots. No ob-
jections to the election were filed.
Inasmuch as the challenged ballots were sufficient
in number to affect the results of the election, the
Regional Director caused an investigation to be
made. Thereafter, on August 1, 1974, the Regional
Director issued and served on the parties his Report
on Challenged Ballots, recommending that the chal-
lenge to the ballot of Eloy Valdez by sustained and
that the challenge to the ballot of Mark Hart be over-
ruled. The Petitioner thereafter filed exceptions to
the recommendation as to Hart.
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.
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
purposes 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 the employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for
the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All production and maintenance employees, in-
1013
cluding shipping and receiving employees and
truck drivers. Excluding: All office clericals,
professionals, guards and supervisors as defined
in the Act.
5. The Board has considered the Regional
Director's report, the Petitioner's exceptions and
brief, the Employer's answering brief, and the entire
record in this case, and hereby adopts the Regional
Director's findings, conclusions, and recommenda-
tions I only to the extent consistent herewith.
The Petitioner asserts, and the Employer admits,
that an oral agreement was reached on June 7, 1974,
in the presence of a Board agent, which was intended
to determine the eligibility of the employees to vote
in the representation election. The parties discussed
individuals by name and agreed, inter alia, that part-
time employee Mark Hart would not be eligible. The
need for a formal representation hearing and deci-
sion was thereby obviated, and immediately subse-
quent to that agreement the Stipulation for Certifica-
tion Upon Consent Election was executed. The stipu-
lation, however, contained no reference to the prior
oral agreement or its terms.
In accord with the oral agreement, Hart's name
was not included on the eligibility list. He appeared
at the polls on election day, however, and cast his
ballot, subject to the challenge of the presiding Board
agent. All other employees who were included on the
eligibility list pursuant to the oral agreement voted
without challenge. The Regional Director concluded
that the requirements of a written, signed, and ex-
press agreement, set forth in Norris-Thermador Cor-
poration, 119 NLRB 1301 (1958), had not been satis-
fied, and hence the oral agreement excluding Hart
from eligibility was not controlling.' Furthermore,
the Regional Director considered the facts revealed
by his investigation and found that Hart "was a regu-
lar part-time employee as of the May 29, 1974 eligi-
bility cut-off date and a full-time employee at the
time of the election." He also found that other part-
time employees had voted in the election without
challenge. The Regional Director, therefore, recom-
mended that the challenge to Hart's ballot be over-
ruled.
We find merit in the Petitioner's exception to the
Regional Director's recommendation. In our opin-
ion, the particular facts of this case necessitate that
we consider this to be a narrow exception to the rule
In the absence of exceptions , we adopt, pro forma, the Regional
Director's recommendation that the challenge to the ballot of Eloy Valdez
be sustained
2 The challenge in this case does not present the issue whether the Board
will honor preelection agreements concerning the statutory eligibility of em-
ployees See Laymon Candy Company, 199 NLRB 547 (1972), Cruts Along
Boats, Inc, 128 NLRB 1019 (1960)
214 NLRB No. 139
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Norris-Thermador. The obvious purpose of the re-
quirement of an express writing under that rule is to
prevent the possibility of any party's obfuscating
Board election procedures by pressing for litigation
of eligibility claims based on alleged oral agreements,
since occasions for discord or delay arise if there is
any difference of opinion regarding the actual under-
standing reached by oral agreement.3 In this case,
however, both parties admit that an oral agreement
was concluded that Hart was to be excluded from
eligibility. Such an agreement, on its face and on the
basis of facts developed by the Regional Director's
investigation, does not contravene any Board policy
or statutory proscription. Furthermore, it is clearly
admitted that but for the oral agreement, reached in
a Board hearing room before a Board agent, the par-
ties were prepared to proceed to hearing on the eligi-
bility issue and would not have signed the consent-
election stipulation.
Under these specific circumstances, we conclude
that it would be improper and inequitable not to re-
gard as final and binding the oral agreement which
both parties acknowledge was made and which was a
critical predicate to the consent election itself. Such a
holding will give effect to the intent of the parties.4
However vehemently our dissenting colleague pre-
sumes to interpret our decision herein as something
more than a narrow exception to Norris-Thermador,
we neither expressly nor constructively overrule the
holding of that case, nor do we anticipate the exten-
sive problems forecast by the dissent. In factual situ-
ations concerning alleged unwritten preelection eligi-
bility agreements we shall continue to apply Norris-
Thermador, and thereby preclude litigation of the
matter, where there is any dispute whatsoever as to
whether there was a firm agreement. The number of
cases in which the parties are in complete accord as
to an unwritten agreement and its nature will un-
doubtedly be as few in the future as they have been
in the past. Ralph H. Baker d/b/a Birmingham Car-
tage Company, 193 NLRB 1057 (1971), cited in the
dissenting opinion herein, did not directly involve
application of the Norris-Thermador rule, but that de-
cision does underscore the need for unequivocal evi-
dence whenever parties differ regarding the intent of
election agreements. Our citation of Buckley South-
land Oil, supra, serves the same purpose. While nei-
ther case is analagous to the present one on the facts,
each serves as guidance and supports our holding in
the situation here, where neither party differs in des-
cribing the content or intent of their agreement.
Thus, here there is unequivocal evidence that the
3 E g, Buckley Southland Oil, Division of Mohawk Valley Oil, Inc, 210
NLRB 1060 (1974)
4 /bid
parties agreed Hart was to be ineligible to vote and it
is not disputed that this concession removed the last
obstacle to reaching the consent-election agreement.
To adhere to the technical rule of Norris- Thermador
in this instance would be to deny the substantive ef-
fect of Norris-Thermador, which was to give Board
sanction and encouragement to clearly expressed,
understood, and admitted preelection agreements be-
tween the parties.
Accordingly, we shall sustain the challenge to
Hart's ballot and, as the tally of ballots in the elec-
tion conducted on June 28, 1974, shows that Peti-
tioner has received a majority of the valid votes cast,
we shall certify it as the exclusive bargaining repre-
sentative for the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for United Furniture Workers
of America , Local 1010 , AFL-CIO, and that, pur-
suant to Section 9(a) of the National Labor Relations
Act, as amended, the said labor organization is the
exclusive representative of all the employees in the
unit found appropriate herein for the purposes of
collective bargaining in respect to rates of pay, wag-
es, hours of employment , or other conditions of em-
ployment.
MEMBER KENNEDY , dissenting:
In 1958 , the Board clearly and concisely articulat-
ed a rule for determining when parties to a represen-
tation proceeding could resolve as between them-
selves issues of voter eligibility:
. . . [W]here 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, and only such an
agreement, a final determination of the eligibili-
ty issues treated therein unless it is, in part or in
whole, contrary to the Act or established Board
policy.,
After nearly 17 successful years with this rule, my
colleagues now hold that an express written agree-
ment is no longer essential-an oral agreement re-
garding eligibility will be sufficient so long as "both
parties ackowledge [that it] was made" and it serves
as a "critical predicate" to the execution of an elec-
tion stipulation. No matter how vehemently they
may try to argue to the contrary, my colleagues have
effectively overruled Norris- Thermador.
5 Norris-Thermador Corporation, 119 NLRB 1301. 1301-2 (1958)
BANNER BEDDING, INC.
The Norris-Thermador rule was not a product of
chance. It was carefully formulated in response to
recurrent interruptions of the Board's election proce-
dures by parties who were unable to agree upon the
proper interpretation of unwritten eligibility agree-
ments . The Board looked favorably upon voluntary
eligibility agreements and thus was unwilling to pro-
hibit their use entirely .6 Instead, it was felt that by
requiring a signed written document which was ex-
pressly binding on the parties, many of the ambigui-
ties-and therefore many of the election interrup-
tions-could be eliminated. Experience during the
past 17 years confirms the wisdom of that judgment.
The new rule announced by the majority can only
serve to resurrect many of the old problems and
create some new ones. For example, although there is
no dispute here that an oral agreement was made, is
6 Norris-Thermador Corporation, supra
1015
the Board to apply a different rule in situations
where it is evident that an understanding was
reached but one of the parties elects not to admit it?
Furthermore, assuming an oral agreement was made,
what standard is the Board to apply in determining
when it is a "critical predicate" to the execution of an
election stipulation? These are just two examples of
the possible disputes which may arise. I, for one, am
unwilling to abandon the certainty and clarity of
Norris-Thermador in favor of a rule whose ambiguity
will inevitably hasten the return of the disruptions
which Norris- Thermador so effectively avoided.'
Accordingly, I dissent.
r In my view, the majority derives no support for its position through
citation to Buckley Southland Oil, Division of Mohawk Valley Oil, Inc, 120
NLRB 1060 (1974) That case did not involve an oral eligibility agreement
Rather, it concerned the proper interpretation to be placed upon the unit
description in a written election stipulation More relevant are cases such as
Ralph H Baker d/b/a Birmingham Cartage Company, 193 NLRB 1057
(1971), in which the Board continues to reject oral eligibility agreements
through continued reliance on the Norris-Thermador requirements