Flight Enterprises, Inc.

National Labor Relations Board - Board Decisions

Feb 3, 1958

119 N.L.R.B. 1442 (N.L.R.B. 1958)

1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intervened between the date of the eligibility agreement and the election, no objec-
tion was made by either of the parties to the eligibility list." Ibid., at 1207. In this
latter respect the instant case can be distinguished, for here the Union did, on the
very eve of the election, question the omission of Ferguson's name from the eligibility
list. On the other hand, in Consolidated, as the Board pointed out, the eligibility
of the specific employee in question was not discussed at the preelection conference
(Ibid., at 1207, footnote 5). In the present case, the status of Ferguson and the
other probationary employees had been discussed and the parties had agreed on their
exclusion from the eligibility list.i Here, presumably, in view of Mr. Sabol's efforts
on the morning of the election to have Ferguson's name placed on the list, there
came a time when the Union wanted to amend the earlier agreement. The question
thus becomes one of whether such a last minute, unilateral, change should be per-
mitted, or whether the better policy would be to hold the parties to the agreement
made at the preelection conference. The latter appears the more equitable, in view
of the fact that in those cases where the parties agreed on an eligibility roster as be-
ing the complete list of eligible voters and subsequently an employee was found to
have been omitted through mistake or inadvertence, the Board, for the stated reason
that it preferred to honor the stipulation of the parties, adhered to the list in the
original agreement and sustained a challenge to the ballot of such an employee. Gulf
States Asphalt Company, 115 NLRB 100, 102; Texas Prudential Insurance Company,
115 NLRB 1383, 1385. If this is the policy as to the finality of an agreement on
the completeness of an eligibility list drawn up by the parties, it would seem to
follow that where the parties at a preelection conference agree on the specific ex-
clusion of an employee, such an agreement would be equally final and binding.
Moreover, although in the normal situation the Board follows a practice of allow-
ing probationary employees to vote (National Torch Tip Company, and cases cited,
supra), it would appear that such a practice will not prevail over the Board's fre-
quently stated policy of honoring an agreement such as that here involved, which
was likewise made in the interest of expeditiously processing an election.
[Recommendations omitted from publication.]
5In a more recent case, 0 L. Szetely and Associates, Inc, 117 NLRB 42, the Board
pointed out that the Coinsohdated Indirstiies decis,on should not be construed to mean
that the mere pieparation and checking of an eligibility list prior to an election precludes
the possibility of challenges at the election In the Szel,ely case the Board concluded
that the eligibility list originally prepared by the parties should not be controlling as
to the eligibility of employees voting in the election regardless of whether the names of
these employees appeaied on the list of had been omitted therefrom That case is distin-
guishable from the present, however, for in Szekely the Board considered it significant
that, at the time the eligibility roster in question was prepared, there had been no
"specific agreement as to the affected individuals, i e , a discussion by name of the
affected persons, with an agreement reached as to their eligibility" (Ibid.). This con-
trasts with the present situation, where, as found above, Feiguson's ciicumstances had
been discussed at the preelection confeience and, as a iesult, his name was deleted from
the aforesaid roster.
Flight Enterprises , Inc. and International Association of Ma-
chinists, AFL-CIO, Petitioner. Case No. 11-RC-939. Febru-
ary 3, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board on May 23, 1957,1 an election was conducted on July 10, 1957,
under the direction and supervision of the Regional Director for the
1 Not reported in printed volumes of Board's Decisions and Orders.
119 NLRB No. 182.
FLIGHT ENTERPRISES, INC. 1443
Eleventh Region. Upon conclusion of the election, the parties were
furnished a tally of ballots which showed that of approximately 486
eligible voters, 412 cast valid ballots, of which 216 were cast for the
Petitioner and 196 were cast against the Petitioner. There were 30
challenged ballots which are sufficient in number to affect the results
of the election.
On July 17, 1957, the Employer filed timely objections to conduct
affecting the results of the election in which it alleged that: (1)
Certain employees who voted in the election were supervisors and
therefore ineligible to vote; (2) the Petitioner engaged in improper
electioneering; and (3) the Petitioner engaged in "coercion, violence
and intimidation."
In accordance with the Rules and Regulations of the Board, the
Regional Director conducted an investigation and on November 21,
1957, issued and duly served upon the parties his report on objections
and challenges. The Regional Director recommended that the
Employer's objections be overruled and that the challenges to 18
ballots be sustained and the challenges to 12 ballots be overruled. The
Regional Director further recommended that the Petitioner be certified
as the exclusive bargaining representative of all employees in the
appropriate unit, as a majority of the valid votes had been cast for the
Petitioner and the 12 challenged ballots which were overruled cannot
alter the results of the election. Thereafter, the Employer filed
timely exceptions to the report on objections and challenges? The
Petitioner filed no exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Employer alleges that certain leadmen were ineligible and
should not have been permitted to vote in the election on the ground
that they are supervisors within the meaning of the Act. The Re-
gional Director overruled this objection on the ground that the
Employer was estopped from asserting that the leadmen were in-
eligible 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 Director'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 bal-
loting. Like the Petitioner, the Employer had the opportunity to
' As no exceptions were filed to the Regional Director's findings that there is no merit
to objections (2) and (3), we adopt these findings pro forma.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenge the ballot cast by any of the employees it deemed ineligible
to vote .3 Having failed to do so, the Employer cannot, under well-
established principles, correct its oversight by post-election chal-
lenges 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.
As we have overruled the objections to the election and as the tally
of ballots shows that the Petitioner received a majority of the valid
ballots cast and the 12 overruled challenges are insufficient in number
to affect the results of the election, we shall certify the Petitioner as
the collective-bargaining representative of the employees in the
appropriate unit.
[The Board certified International Association of Machinists, AFL-
CIO, as the designated collective-bargaining representative of all pro-
duction and maintenance employees at the Employer's Charleston,,
South Carolina, operations.]
3 The Petitioner challenged the ballots of 18 employees on the ground that they were
supervisors. The Regional Director would sustain the challenges as to 14 employees.
and overrule them as to 4 employees. The Regional Director also would sustain the
challenges to the ballots cast by 4 other employees and overrule the challenges as to 8.
additional employees , on various other grounds not material herein . As no exceptions.
were taken to the Regional Director ' s rulings with respect to the challenged ballots, we-
adopt these rulings pro forma . The Employer does not dispute the Regional Director's
rulings with respect to' any of the challenges, but argues that some of the employees
who voted without challenge had comparable jobs to those of the 14 employees whose
challenged ballots were sustained by the Regional Director as supervisors . This argument
deals with the post-election challenge which is discussed above.
4 N. L. R. B. v. A. J. Tower Company, 329 U. S. 324; Sears Roebuck and Co., 114 NLRB:
762 ; General Steel Tank Co., Inc., 111 NLRB 222, 224.
United Brotherhood of Carpenters and Joiners of America,.
AFL-CIO and Its Agent Cecil Shuey; Local 60, United Broth-
erhood . of Carpenters and Joiners of America, AFL-CIO and
Its Agents Chester Bereman and Paul Bear ; and Carpenters.
District Council, United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO and Its Agent R. R . Smith and.
Wendnagel & Company. Cases Nos. 35-CC-35 and 35-CD-924
February 5,1958
DECISION AND ORDER
On February 18, 1957, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding, in Case
119 NLRB No. 184.