Hunt-Wesson Foods, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1975

220 N.L.R.B. 922 (N.L.R.B. 1975)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hunt-Wesson Foods, Inc. and Cannery Workers &
Warehousemen's Union, Teamster Local No. 857,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Pe-
titioner. Case 20-RC-12357
September 30, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, an election was conducted on No-
vember 1, 1974, among the employees in the stipulat-
ed unit. The tally of ballots furnished the parties
showed that, of approximately 10 eligible voters, 13
cast ballots, of which 5 ballots were for the Peti-
tioner, 5 ballots were against the Petitioner, and 3
ballots, sufficient in number to affect the results of
the election , were challenged. Thereafter, Petitioner
filed timely objections to conduct affecting the re-
sults of the election.
In accordance with the National Labor Relations
Board's Rules and Regulations , Series 8, as amended,
the Regional Director for Region 20 conducted an
investigation and, on December 23, 1974, issued and
served on the parties his Report on Objections and
Challenged Ballots and Notice of Hearing on Chal-
lenged Ballots, relevant portions of which are at-
tached, recommending that the Petitioner's objec-
tions be overruled and a hearing be held to resolve
the eligibility of Jess Phelan, Cleotilde Fernandez,
and Carol Ann Horgan, the challenged voters. On
January 10, 1975, the Regional Director issued a
Supplemental Report on Challenged Ballots, Order
Consolidating Cases,' and Notice of Hearing.
On February 21, March 7, and March 31, 1975, a
hearing was held at San Francisco, California, before
Hearing Officer Bruce I . Friend. All of the parties
participated in the hearing. On May 1, 1975, the
Hearing Officer issued and duly served on the parties
his Report on Challenges, in which, without ruling on
the merits of the challenged ballots of Jess Phelan,
Cleotilde Fernandez, and Carol Ann Horgan, he rec-
ommended that the challenges to their ballots be sus-
tained and that the Board issue an appropriate certi-
fication. Thereafter, the Petitioner filed exceptions to
the Hearing Officer's report and a supporting brief,
contending that the case should be remanded to the
Hearing Officer for a ruling on the merits of the chal-
lenges.
The order consolidated the instant case with Case 20-RC-12119, involv-
ing the same parties . The cases are hereby severed for the purpose of deci-
sion.
The Hearing officer found it unnecessary to rule
on the merits of the challenged ballots because he
found that Petitioner and the Employer, in the pres-
ence to two Board agents , entered into an unequivo-
cal oral agreement to exclude Phelan and Fernan-
dez? Consequently, relying on Banner Bedding, 214
NLRB No. 139 (1974), the Hearing Officer recom-
mended that the challenges to ballots of Phelan and
Fernandez be sustained . We disagree.
In Banner Bedding a majority of the Board con-
cluded that because the parties orally agreed as to the
eligibility of employees and such agreement was a
"critical predicate to the consent election itself" a
narrow exception should be made to the Norris-Ther-
mador requirement of a written, signed, and express
agreement 3 and the oral agreement was found to be
binding on the parties. However , the majority in Ban-
ner Bedding emphasized that
[i]n factual situations concerning alleged unwrit-
ten preelection eligibility agreements we shall
continue to apply Norris-Thermador, and there-
by preclude litigation of the matter, where there
is any dispute whatsoever as to whether there was a
firm agreement . [Emphasis supplied.]
In the instant case Alex Luscutoff, Petitioner's sec-
retary-treasurer , testified that, in the course of the
discussion of the eligibility of Phelan and Fernandez,
he sought the advice of the Board agents present.
Luscutoff further testified that Board Agent Wade
told him he could amend the certification and that
Luscutoff thought this could be accomplished during
the election . On cross-examination , when asked if
"you did agree to exclude [Phelan and Fernandez]
? " Luscutoff replied, "With the understanding
that I had from Mr. Wade, Yes."
In addition to the above, Luscutoff testified that
Petitioner was not represented by counsel at the
above-mentioned discussion , that Luscutoff did not
know what an AC or UC petition is, and that he has
been a paid representative for Petitioner for 10-15
years.
On the basis of the foregoing record evidence, we
find that Luscutoff 's agreement to exclude Phelan
and Fernandez was based on his misunderstanding
as to the consequences of that action, and that ,- there-
fore , the oral agreement in this case is not the sort of
unequivocal binding agreement contemplated in
Banner Bedding. We therefore find that the rationale
of that case does not apply here but that, to the con-
trary, this is precisely the type of situation in which
the Norris-Thermador rule should be applied. Ac-
2 At the hearing the parties stipulated as to the exclusion of Horgan from
the unit on the basis of dissimilar work interest.
3 Norris-Thermador Corporation, 119 NLRB 1301 ( 1958).
220 NLRB No. 129
HUNT-WESSON FOODS, INC.
cordingly, as there was no express, signed written
agreement to exclude Phelan and Fernandez, we
shall remand this case to the Hearing Officer for rul-
ing on the merits of their challenged ballots.
ORDER
It is hereby ordered that the above-mentioned
matter be, and it hereby is, remanded to Hearing Of-
ficer Bruce I. Friend for the purpose of making sub-
stantive findings, on the basis of the record adduced
at the hearing held on February 21 and March 7 and
31, 1975, in the above-entitled case relative to the
disposition of the challenges to the ballots of Jess
Phelan and Cleotilde Fernandez. Specifically, the
Hearing Officer is instructed to make those findings
necessary to resolve the issue as to whether or not
these challenged voters are eligible for inclusion in
the stipulated clerical unit on the basis of the Board's
established unit principles.
IT IS FURTHER ORDERED that the Hearing Officer
shall prepare and cause to be served on the parties a
report containing such findings, including recom-
mendations to the Board as to the credibility of wit-
nesses, and recommendations to the Board as to the
disposition of the challenges to the ballots of Jess
Phelan and Cleotilde Fernandez. Within 10 days
from the date of issuance of such report, either party
may file with the Board in Washington, D.C., eight
copies of exceptions thereto. Immediately upon the
filing of such exceptions, the party filing the same
shall serve a copy thereof on the other party and
shall file a copy with the Regional Director.
APPENDIX
At the outset of the hearing, the Employer took
the position that the parties had reached an under-
standing prior to signing the Stipulation For Certifi-
cation Upon Consent Election that Jess Phelan, Cleo-
tilde Fernandez, and Carol Ann Horgan would not be
,eligible to vote in the election. The Employer con-
tends that because of this agreement, the merits of
the challenges should not be considered. The Em-
ployer further contends that if the merits are consid-
ered, Fernandez and Phelan are not eligible because
they are confidential, managerial and/or supervisory
employees.7 The Petitioner took the position that the
hearing officer should rule on the merits of the chal-
lenges because, due to a misunderstanding, there was
no clear agreement regarding their eligibility. The Pe-
titioner further contends that Fernandez and Phelan
are clericals within the unit description and should
be included.
C. Richard McCall, assistant manager of Labor
923
Relations for the Employer, testified that on October
7, he and Alex Luscutoff, Secretary-Treasurer of Lo-
cal 857, entered into an oral agreement in the pres-
ence of two Board agents which was intended to de-
termine the eligibility of the employees to vote in the
representation election. The parties discussed indi-
viduals by name and initially resolved the eligibility
of all employees except Horgan, Fernandez and Phe-
lan. Luscutoff testified that, after some discussion of
the company's inclusion or exclusion of employees in
the same positions at the Employer's other facilities,
he sought the advice of the Board agents present re-
garding the eligibility of Fernandez and Phelan. Lus-
cutoff stated, "The Board agent Wade told me that I
can amend the certification unit. And I thought, in
my own humble way of thinking, well, we can do
that during the election." Further testimony elicited
that Luscutoff was not represented by legal counsel
on October 7, he does not know what an AC or UC
petition is, and he has been a paid representative for
the Local for 10-15 years.
On cross-examination, McCall asked Luscutoff,
"But did you or did you not agree, on October 7th,
specifically to exclude Jess Phelan and Tilly Fernan-
dez from the unit." Luscutoff responded: "I objected
to the list. And I eventually said, after being told by
the-by Mr. Wade that I could amend the certifica-
tion." McCall: "Is your answer that you did agree to
exclude them on October 7th? Is that your answer? "
Luscutoff: "With the understanding that I had from
Mr. Wade. Yes."
It is firmly established that the Board gives great
weight to an agreement voluntarily reached by the
parties and in the absence that such agreement con-
travenes Board policy on statutory proscription, will
bind the parties to this agreement. Cruise Along
Boats, 128 NLRB 1020, 1021 (1960). In the instant
case, there is no such contention that the agreement
contravenes established Board policy or statutory
proscription and the record reflects that the agree-
ment should not be disturbed for these reasons.
Rather, the Petitioner argues that it misunderstood
the consequences of its agreement to exclude the
three challenged voters. The issue, therefore, that is
presented is whether or not the parties did in fact
reach an unequivocal oral agreement regarding the
eligibility of the employees.8 I conclude that they did
for the reasons set forth below.
The parties admittedly met and discussed the eligi-
bility of several employees and agreed that Horgan,
Fernandez and Phelan should be excluded. The Peti-
7 At the hearing , the parties agrees that Horgan should be excluded be-
cause she lacks a community of interest with the other employees.
8 Banner Bedding, 214 NLRB No. 139 (1974).
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioner seeks to void this agreement because it misun-
derstood the consequences of entering into it .9 It
seems that it would be improper and inequitable not
to regard as final and binding an agreement which
both parties agreed they made.l° To allow a party to
withdraw from a stipulation on the basis that it mis-
understood its meaning would allow any party subse-
quently to withdraw when it found the stipulation
not to its liking. In light of the absence of any
ambiguity of what the parties agreed to, the Peti-
tioner should not be permitted to withdraw from its
agreement. It is noted that Luscutoff testified that
the Board agent said something to the effect of
amending the certification. However, he did not
9Cf. Buckley Southland Oil, 219 NLRB 6 (1974 ), in which there was no
meeting of the minds regarding an agreement because the parties were not
clear on the meaning of permanent employees.
10Banner Bedding, supra, N.L.R.B v. O'Connor Chevrolet-Buick-GMC
Co., 512 F.2d 684 (C.A. 8, 1975).
seem to recall the exact language the Board agent
used." But from the testimony of Luscutoff and Mc-
Call, it seems clear to me that the parties intended to
exclude the employees from the eligibility list," and if
they desired could later attempt to include them in a
postelection procedure.
Relying on acceptance of oral agreements by the
Board in Banner Bedding, I conclude that the parties
are bound to their preelection agreement that Hor-
gan, Fernandez and Phelan be excluded. I, therefore,
recommend that the challenge to their ballots be sus-
tained and the Board issue an appropriate certifica-
tion.13
1 I attribute this to the technical meaning of the terms amend of certifica-
tion and unit clarification and Luscutoff's unfamiliarity with an AC or UC
petition.
12 Tribune Publishing Company, 190 NLRB 398 (1971).
"In light of the above, there is no reason to rule on the substance of the
challenges.