Birmingham Cartage Co.

National Labor Relations Board - Board Decisions

Oct 29, 1971

193 N.L.R.B. 1057 (N.L.R.B. 1971)

BIRMINGHAM CARTAGE CO. 1057
Ralph H. Baker d /b/a Birmingham Cartage Company
and Teamsters Local Union 612 , affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America. Case
10-RC-8743
October 29, 1971
DECISION AND DIRECTION
By MEMBERS FANNING, JENKINS, AND
KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election an election by secret ballot was
conducted in this proceeding on August 6, 1971,
under the direction and supervision of the Regional
Director for Region 10, among the employees in the
appropriate unit. At the conclusion of the balloting
the parties were furnished a tally of ballots which
showed that of approximately 20 eligible voters there
were 10 votes cast for the Petitioner, 8 cast against the
Petitioner, and 4 ballots challenged. No objections to
the election were filed by either of the parties.
The challenged ballots being sufficient in number to
affect the results of the election, the Regional Director
pursuant to Section 102.69 of the Board's Rules and
Regulations, Series 8, as amended, conducted an
investigation of the issues raised, and on September 1,
1971, issued his Report on Challenged Ballots in
which he recommended that challenges to the ballots
of Joel Key and Thomas Warren Wood be sustained
but that those to the ballots of Dennis Freeman and
Martin Sharron be overruled and their ballots
counted. The Employer filed timely exceptions with
respect to the ballot of Wood.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in connection with 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 employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The following employees, as stipulated by the
parties, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All full time and part time city drivers and
warehousemen including the O.S. & D. employee
and mechanics, but excluding the dispatcher, all
supervisors, office clerical employees and guards
as defined in the Act.
5. The Employer contends that Wood was an
eligible voter, contrary to the Regional Director's
finding that he was not employed on the July 9
eligibility date. It contends that it discussed with the
Petitioner in connection with the stipulation each and
every employee, including Wood, who was not then
working and reached agreement that in return for
dispatcher Chambers being excluded from the unit all
employees employed before July 9, 1971, would be
eligible to vote. It also contends that Wood, though
absent from employment for 5 weeks immediately
before his return to work on July 19, "was still carried
on the employment records" and had given it no
reason to believe that his absence was for anything
other than bona fide personal reasons.
The Regional Director found, and Employer does
not dispute, that Wood's name did not appear on the
eligibility list. Wood was therefore challenged by the
Board agent. The investigation disclosed that Wood,
during the period of his absence, accepted full-time
employment with another trucking firm because he
thought it offered better working conditions, that he
did not inform the Employer of this, and that he later
abandoned that job to return to work for the
Employer on July 19.
In the circumstances we agree with the conclusion
of the Regional Director that Wood had voluntarily
quit his employment with the Employer and was not
employed on the July 9 eligibility date. We note that
the Employer failed to include Wood on the eligibility
list and does not now even contend that this failure
was an oversight. Had it prepared an eligibility list
with Wood's name on it, and had both parties signed
this with an express provision that issues of eligibility
resolved therein be final and binding upon the parties,
the Board would consider such an agreement a final
determination of the eligibility issues treated, unless
contrary to the Act or established Board policy.' Here
there is no signed agreement on eligibility and the
Employer raises no factual issue with respect to
Wood's having voluntarily removed himself from its
employment rolls. Accordingly, the Board adopts the
Regional Director's recommendation with respect to
the ballot of Wood as well as the remaining three
challenged ballots to which no exceptions were filed.
DIRECTION
IT IS HEREBY DIRECTED that the Regional Director
t See Norris-Thermador Corporation, 119 NLRB 1301. Here the Board
need not reach the further policy question of including a nonemployee
such as Wood
193 NLRB No. 165
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Region 10 shall , pursuant to the Board's Rules and cause to be served on the parties a revised tally of
Regulations , within 10 days from the date of this ballots including therein the count of the said
Direction , open and count the ballots of employees challenged ballots, and issue an appropriate certifica-
Freeman and Sharron and thereafter prepare and tion.