Cruis Along Boats, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1960

128 N.L.R.B. 1019 (N.L.R.B. 1960)

CRUIS ALONG BOATS, INC. 1019
CONCLUSIONS OF LAW
1. The operations of Cadillac Wire Corp . constitute trade , traffic, and commerce
among the several States, within the meaning of Section 2(6) of the Act.
2. Steel, Metals, Alloys and Hardware Fabricators and Warehousemen Local
810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America is a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondents have not engaged in unfair labor practices as alleged in the
complaint.
[Recommendations omitted from publication.]
Cruis Along Boats, Inc. and District 50, United Mine Workers
of America, Petitioner. Case No. 5-RC-2940. August 06, 1960
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued by the
Board,' an election by secret ballot was conducted on January 29,
1960, in the above-entitled proceeding under the direction and the
supervision of the Regional Director for the Fifth Region among the
employees in the appropriate unit. Upon completion of the election,
the parties were furnished a tally of ballots which showed that of
approximately 98 eligible voters, 93 were cast, of which 44 were for,
and 38 against, the Petitioner, and 11 ballots were challenged. The
challenged ballots were sufficient in number to affect the results of the
election. No objections to the election were filed by the parties.'
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation of the challenged ballots and
on April 15, 1960, issued and served upon the parties his report on
challenges, in which he found that two of the individuals whose ballots
were challenged properly belonged in the unit, and the remaining nine
were supervisors within the meaning of the Act. As all 11 of the
above individuals had been specifically included within the unit by the
Board's Decision and Direction of Election, pursuant to a stipulation
of the parties at the hearing, the Regional Director made no recom-
mendation as to the disposition of the challenges, pending a Board
ruling as to the effect of the stipulation. The Employer filed timely
exceptions and a supporting brief as to the Regional Director's find-
ings that the above nine individuals were supervisors.
The Regional Director in his report raises the issue of whether the
Board should honor the stipulation entered into by the parties at the
hearing to include the above 11 individuals in the unit in light of his
investigation. At the original hearing the parties, pursuant to an
off-the-record discussion, agreed that the 11 individuals in question
"do not have the authority to hire or fire, effectively recommend such
1 Unpublished.
128 NLRB No. 115.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action, nor do they responsibly direct any employee nor assign them
work, such assignment being of a responsible nature." The Board in
its Decision and Direction of Election adopted the unit stipulated by
the parties, and in footnote 2 of its Decision listed the names and job
titles of the 11 individuals which the parties agreed should be included
in the unit. Neither party subsequent to the hearing made a motion
to the Board to reopen the hearing, nor did either party after the
issuance of the above Decision file a motion for its reconsideration.
At a preelection conference on the day of the election the Petitioner
apparently for the first time questioned the stipulation contending
that "further investigation revealed that the 11 employees involved
were definitely supervisory within the meaning of the Act and their
votes would be challenged." At the election the Petitioner was per-
mitted by the Board agent to challenge the 11 ballots.
In his investigation of the challenges the Regional Director found
that 9 of the 11 individuals responsibly directed the work of others
and were supervisors under the Act 2 The Employer in its exceptions,
however, raises material and substantial issues of fact concerning the
alleged supervisory status of these employees which could only be
resolved by a second hearing. In addition, the Employer contends
that the Petitioner should be required to honor its stipulation and
that the challenges be overruled in accord therewith. In the present
state of the record, we find merit in the Employer's contention, and
we are unable to reconcile ourselves to order;.gs would be required in
this case, a second hearing in the absence of some showing by the
Petitioner that the contentions advanced to repudiate the stipulation
were newly discovered or were not available at the time of the original
hearing: In the interest of expeditious handling of representation
cases in general, the Board has a well-established policy of holding
parties to a stipulation, such as herein in question, which on its face
and on the basis of facts developed at the hearing does not contravene
any Board policy or statutory proscription.` In our opinion to permit
a party to repudiate a stipulation formally made at a hearing on the
day of the election on the basis of unresolved contentions, or as our
dissenting colleagues apparently advocate because the individuals in-
volved "may be" improperly placed, would give encouragement to
unwarranted and dilatory claims and would result in a lack of finality
to Board proceedings and decisions, , Indeed, it its apparent that but
for the stipulation at the hearing at which it was adequately repre-
sented and had full opportunity to present its position, the very
eligibility issue that the Petitioner questioned for the first time on the
2 As to the remaining two, the Regional Director found that they were nonsupervisors
and properly belonged in the unit.
8 See, e.g., Phalo Plastics Corporation, 123 NLRB 503 , 504; Port Houston Iron Works,
Inc., 103 NLRB 1489 , 1491; Hagen Manufacturing Company, Inc., 100 NLRB 1321, 1322.
4 Cf. Vent Control, Inc. of Ohio, etc., 126 NLRB 1134.
CRUIS ALONG BOATS, INC. 1021
day of the election would have then been litigated and terminated with
finality on the merits. To permit the Petitioner, in the face of the
stipulation, to have this issue again raised through a postelection
hearing would, in our opinion, be permitting the Petitioner to play
fast and loose with the Board's administrative processes and would
appear to be based more upon its concern with probable election results
rather than with its concern for the statutory requirements of the Act.
Contrary to the implication of the dissenting opinion, we are not
"knowingly" including proscribed individuals in the unit. Our
refusal to investigate this matter at this stage of the proceedings is
based upon procedural grounds and does not necessarily mean that
the individuals in question are appropriately in the unit. The pro-
cedural bar we are applying herein is grounded upon our established
policy to promote sound administrative practice in conducting elec-
tions and is similar to our procedural rule against postelection chal-
lenges, which was approved by the Supreme Court of the United
States, even though it "conceivably may result in the counting of
ineligible voters." s Therefore, for the purposes of the election, we
find that the parties are bound by their stipulation, and without pass-
ing upon the question of whether or not the individuals in question
are in fact supervisors, we shall overrule the challenges to the ballots
of O. Joy, W. Joy, Ward, Selby, Lankford, Williams, Pardue, Hall,
Langley, Elliott, and Thomas.
The Board directed that the Regional Director for the Fifth Re-
gion shall, within 10 days from the date of this Direction, open and
count the ballots and serve upon the parties a supplemental tally of
ballots.]
MEMBERS JENKINS and FANNING, dissenting :
We cannot agree with the majority's refusal, under the circum-
stances of this case, to order a hearing for the purpose of determining
whether the 11 individuals whose ballots were challenged are super-
visors within the meaning of the Act.
At the outset, we are constrained to observe that the holding of the
majority is obscure and ambiguous as it is susceptible of two entirely
different interpretations. On the one hand, it is said that the parties
are bound by their stipulation to include the disputed individuals in
the unit. On the other hand, however, the majority states that the
individuals in question are not necessarily included in the appropriate
unit, but their ballots must be counted. The effect of the first ap-
proach is that possible supervisors become part of a unit with rank-
and-file employees. The effect of the second approach is to allow
the ballots of possible supervisors to affect the results of the election
6 See N.L.R.B. v. A. J. Tower Company, 329 U.S. 324 , 331-335.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a bargaining representative for rank-and-file employees. We re-
ject both interpretations-regardless of which the majority espouses-
as beyond the Board's statutory authority and contrary to sound
administrative practice.
The Board is, of course, obligated to enforce the statute as written
and such power as it has is completely derived therefrom. Clearly,
the Act requires the Board to exclude supervisors from a unit of
employees, since they are excluded from the statutory definition of
employees in Section 2(3), and the Board is without jurisdiction to
hold otherwise.' Also, Section 9 (a) of the Act, clearly precludes
participation of supervisors in a Board election by requiring that the
exclusive representative be "designated or selected . . . by the ma-
jority of the employees" in the appropriate unit. In the instant
case, if the disputed individuals are supervisors-and the Regional
Director found after investigation that nine of them are-then by
knowingly including them in the unit of employees or counting their
ballots in the face of timely challenges, the majority is exceeding the
powers delegated to the Board by Congress and acting contrary to
specific prohibitions in the Act.'
Furthermore, the Board is also under a statutory mandate by virtue
of Section 9(b) to resolve disputes as to employee status within the
meaning of the Act and is not authorized totally to surrender this
duty, as it is doing in this instance. Whether the agreement of the
parties is construed as one binding upon them for purposes of in-
clusion in the unit or eligibility to vote, by requiring adherence of
the parties to their bare stipulation with no supporting evidence as
to the lack of supervisory status of the 11 individuals in the face of
a likelihood that their stipulation is erroneous, our colleagues are ab-
dicating the Board's statutory function. Moreover, if the majority
is holding the stipulation binding only for purposes of inclusion in
the unit, then under the circumstances of this case, the majority is
accepting a waiver of a statutory exclusion which cannot be waived."
In furtherance of the foregoing obligations, the Board has stated
frequently and correctly that, in the interest of expeditious handling
of representation cases in general, it will honor the stipulations of
the parties which are not inconsistent with the Act or with Board
policy,' but that any stipulation which is repugnant to the statute or
6 The Illinois Canning Co., 125 NLRB 699
7 See Boyd Leedom et al. v. William Kyne, et al., 358 U.S. 184.
s United Insurance Company of America, 122 NLRB 911, 272 F. 2d 446 ( C.A. 7), en-
forcement denied on other grounds.
9It is well established that where the Board adopts a stipulation concerning eligibility
on the basis of record evidence, the parties may not relitigate that matter by means of
challenges or objections . Cooper Supply Company, 120 NLRB 1023 . Cf. Hagan Manu-
facturing Company, Inc., 100 NLRB 1321 ; Port Houston Iron Works, Inc., 103 NLRB
1489; Bon Marche, 118 NLRB 1621 . In contrast , here the Board did not in fact make
an eligibility finding regarding the 11 disputed individuals, but merely noted the agree-
CRUIS ALONG BOATS , INC. 1023
the Board's policy will be disregarded." In the realm of its statutory
power, the Board has no leeway and is strictly limited to what Con-
gress has delegated to it under the Act. By its holding here, the
majority is honoring a bare agreement which may be in conflict with
the statute. It is incumbent upon the Board to ascertain whether or
not there is such a conflict.
The majority justifies its action by characterizing it as a procedural
bar and in doing so equates timely challenges such as are involved
here, i.e., challenges of the voters at the time they appear at the polls
to vote and before they cast their ballots, to postelection challenges,
i.e., an attempt to question the eligibility of voters after they have
cast their ballots. The Supreme Court of the United States has ap-
proved the Board's rule against postelection challenges in the A. J.
Tower case," but this affords no support for the position of our
colleagues. Thus, it is patently clear from a reading of that opinion
that the Court approved this rule because of the Board's policy of
permitting timely challenges in the same manner as is done in political
elections and the Court's finding that the rule is consistent with con-
gressional intent. Indeed, the Supreme Court made the following
specific comments : 12
... One of the commonest protective devices is to require that
challenges to the eligibility of voters be made prior to the actual
casting of ballots, so that all uncontested votes are given absolute
finality... .
Long experience has demonstrated the fairness and efficacious-
ness of the general rule that once a ballot has been cast without
challenge and its identity has been lost, its validity cannot later be
challenged. This rule is universally recognized as consistent with
the democratic process. And it is generally followed in corporate
elections. The Board's adoption of the rule in elections under
the National Labor Relations Act is therefore in accord with the
principles which Congress indicated should be used in securing
the fair and free choice of collective bargaining representatives.
It is thus clear that Congress intended that the Board have the
authority to reject postelection challenges and that this is an exception
ment of the parties without specifically adopting it. Moreover, to the extent a finding
might be said to have been made, it was supported solely by a conelusionary statement of
the parties that these individuals do not exercise supervisory authority. Statements of
this kind do not establish absence of such authority, being words of art reflecting legal
conclusions which do not assist in the resolution of disputes. National Gypsum Company,
128 NLRB 315
1O For examples of cases where the Board has rejected stipulations contrary to the Act,
see Vent Control , Inc of Ohio, et al., 126 NLRB 1134 ( supervisors ) ; F M. Reeves and
Sons, Inc. , 114 NLRB 1243 ( supervisors ) ; Central Cigar d Tobacco Co., 112 NLRB 1094
(supervisors ) ; Colonial Shirt Corporation , 114 NLRB 1214 (guards) ; and see United
Insurance Company , supra ( independent contractors).
n N.L.R B. v. A. J. Tower Co., 329 U.S. 324.
22 Ibid. at 331 and 332.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the limitations referred to above which Congress has placed upon
the Board's power.
The Board itself has apparently recognized this distinction. In
Flight Enterprises, Inc.," which involved circumstances very similar
to those in the instant case, the Board rejected postelection challenges,
but indicated that timely challenges would have been acceptable. In
that case the Board found, on the basis of the parties' stipulation at
the hearing, that leadmen were not supervisors. At the election, the
petitioner challenged the ballots of some of the leadmen on the ground
they were supervisors.14 After the election the Employer filed objec-
tions to the election alleging that leadmen were supervisors and that
some had been permitted to vote without challenge. The Board over-
ruled the Employer's objection with the following statement:
The Regional Director overruled this objection on the ground
that the Employer was estopped from asserting that the leadmen
were ineligible to vote, in view of the Board's appropriate unit
finding, based on the parties' stipulation at the hearing, that
leadmen are not supervisors. We agree with the Regional Di-
rector's conclusion for the following reason, basic to the Board's
election procedures. The Employer prepared the eligibility list
used in the election and both the Employer and the Petitioner
had observers present during the balloting. Like the Petitioner,
the Employer had the opportunity to challenge the ballot cast by
any of the employees it deemed ineligible to vote. Having failed
to do so, the Employer cannot, under well-established principles,
correct its oversight by post-election challenges in the form of an
objection. If the Board were to entertain the challenges at this
time, its election processes would be converted from a definitive
resolution of preference into a protracted resolution of objections,
perhaps concerning issues purposely disregarded or suppressed
against the contingency of an adverse result. [Emphasis
supplied.]
It is clear to us that by the present holding, the majority is over-
ruling, without so stating, Board decisions in the above-noted and
related cases and is disregarding the reasoning of the Supreme Court
in the Tower case. But even assuming, arguendo, that the Board
has the power to change its procedures in this respect, it is clear to us
that the present holding of the majority will have a multiple, wide-
spread, and undesirable impact on the Board's processes.
18119 NLRB 1442. It is noted that two members of the present majority participated
in that decision.
14 With regard to these challenged ballots, the Regional Director recommended sus-
taining some and overruling others. As no exceptions were taken to the Regional Director's
rulings with respect to the Petitioner 's challenged ballots, the Board adopted them pro
forma.
CRUIS ALONG BOATS, INC. 1025
In the first place, there will hereafter be a difference in the effect
of an agreement as to eligibility depending on whether it is made via
a stipulation such as is involved here at the time of the hearing or in
connection with the preelection check of an eligibility list, the former
being absolutely binding and the latter being binding only if in the
form of a "written and signed agreement which expressly provides
that issues of eligibility resolved therein shall be final and binding
upon the parties." 15 This difference in treatnuiet can only result in
fewer agreements during the hearing, lest an incorrect concession be
made which cannot later be corrected.16 Further, this treatment is
an invitation to employers who may wish to do so to withhold informa-
tion concerning the duties of borderline classifications for the purpose
of having supervisors or other ineligible categories included in a unit
to increase the antiunion vote."
Secondly, the majority declines to dispose of the question of inclu-
sion or exclusion of the disputed employees at this posture of the
case, presumably in the interest of finality. But the only result is
greater uncertainty. If the majority is in fact not ruling on inclusion,
the issue is still unresolved, and if the election should result in the
certification of representatives the question can be finally settled only
by the filing of a motion requesting that the Board clarify its certifica-
tion in this respect. The majority implies that this would be the
proper method of proceeding. Since it is clear that the same situation
may arise in almost any case, we foresee an increase in uncertainty as
to actual unit composition and in the number of motions for clarifica-
tion which the Board will be required to consider.
Lastly, and by no means the least, the majority is now adopting a
new rule which separates eligibility from inclusion and permits the
first without the second. This is a complete departure from anything
the Board has previously done. Thus, the Board at one time held
that certain employees, such as seasonal or part-time employees, were
16 Norris -Thermador Corporation, 119 NLRB 1301.
'"It should be noted that an agreement at a hearing is usually based on less actual
knowledge than a nonbinding agreement on an eligibility list prior to election. Thus,
during the course of the hearing the parties rarely have before them a complete list of
the employer 's employees and their categories , whereas the preelection check of the
payroll list involves consideration of just such a list.
''+ The majority states that the Petitioner 's position "would appear to be based more
upon its concern with probable election results rather than with its concern with the
statutory requirements of the Act" and thereby implies that a concern with election
results is somehow reprehensible . We think it is obvious that any representation pro-
ceeding is entirely directed to the election results and that all parties are, as they should
be, greatly concerned therewith. Indeed, we have no doubt that the Employer 's position
here is equally based upon its concern with the probable election results and not with
the statutory requirements . Otherwise , it would not insist upon strict adherence to the
agreement regardless of the status of the disputed employees , but would welcome a deter-
mination of their status. We can perceive nothing wrong with any party 's taking proper
advantage of any statutory or procedural requirements which may favor its position, and
this is so whether the proceeding be an investigation in a representation case or litiga-
tion of an unfair labor practice case before the Board or a legal action in any court.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
included in the unit but were ineligible to vote.18 The Board subse-
quently changed this rule by holding that if employees were properly
includable in a bargaining unit their eligibility to vote followed auto-
matically.19 Until now this has continued to be the Board's practice.
Now, however, the majority is holding that persons may be eligible to
vote although they may not be properly includable in the unit. We
can see some reason for the inclusion without eligibility, and we are
in accord with the automatic combination of inclusion and eligibilty.
But eligibility without inclusion is without support in logic or prece-
dent. We must reject such a procedure as an abuse of the Board's dis-
cretion and a breach of its obligations under the Act.
In sum, the Board's attention has been directed here to the fact
that possible supervisors may be included in the stipulated unit and
that their votes may affect the election results. Under these circum-
stances, we do not believe that the Board can substitute the parties'
agreement for its determination of the status of the disputed persons,
for purposes, of either inclusion or eligibility, and thus evade or
abdicate its obligations and duty under the Act. Nor, for the reasons
given, can we subscribe to the changes which the majority is making
in the Board's precedures. Whether the unit contains supervisors
who should be excluded therefrom and ineligible to vote can only be
ascertained in a hearing. We would order such a hearing. Indeed,
we are firmly convinced that this is the only appropriate action which
the Board can take. Therefore, we dissent from the majority's
decision.
Is E g., The Fair Department Store, 107 NLRB 1501; Producers Rice M1118 , Inc, et al,
106 NLRB 119.
19 See, e g., Sears Roebuck & Company, 112 NLRB 559, 569, footnote 28.
P. G. Gray 1 and United Packinghouse Workers of America,
AFL-CIO, Petitioner . Case No. 18-RC-4148. August 26, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Kenneth W. Haan,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
' The name of the Employer appears as amended at the hearing
128 NLRB No. 117.