Mohawk Valley Oil, Inc.

National Labor Relations Board - Board Decisions

May 30, 1974

210 N.L.R.B. 1060 (N.L.R.B. 1974)

1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buckley Southland Oil, Division of Mohawk Valley
Oil, Inc . and Truck Drivers & Helpers No. 317, an
affiliate of the International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America, Petitioner. Case 3-RC-5894
May 30, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 3 on December 5, 1973, an election by
secret ballot was conducted in the above-entitled
proceeding on December 14, 1973. At the conclusion
of the balloting, the parties were furnished with a
tally of ballots which showed that of approximately
28 eligible voters, 28 ballots were cast, of which 8
were for the Petitioner, 12 were against the Petition-
er, and 8 were challenged. The challenges were
sufficient in number to affect the results of the
election. On December 21, 1973, the Petitioner filed
timely objections to conduct affecting the results of
the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and thereafter, on Janu-
ary 22, 1974, issued his Report on Objections and
Challenges.' In his report, the Regional Director
recommended that the challenges to all eight ballots
be overruled and that the ballots be counted. He
further recommended that, in the event the revised
tally of ballots revealed that the Petitioner had not
received a majority of the valid votes cast, the
election be set aside on the basis of Petitioner's
Objection 1.2
The Regional Director recommended that the
election be conducted at a time when the employee
complement is at the seasonal peak in order to
provide all eligible employees an opportunity to vote.
Thereafter, the Employer filed timely exceptions to
these recommendations and a supporting affidavit
and the Petitioner filed a brief in answer to the
Employer's exceptions with supporting affidavits.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
i The Acting Regional Director on January 23, 1974, issued an Erratum
thereto
2 The Regional Director also recommended overruling Petitioner's
Objections 2 and 3 Because of our disposition of the issues relating to the
appropriate unit , we make no formal determination on Petitioner's
objections to the election held herein
3 Petitioner argues in its answering brief that the Employer' s exceptions
should be rejected because of the failure of the Employer to serve a copy of
National Labor Relations Board has delegated its
authority 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 employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Board has considered the Regional Direc-
tor's report, the Employer's exceptions thereto, and
the Petitioner's reply to those exceptions and makes
the following determinations.3
In signing the Stipulation for Certification Upon
Consent Election, the Employer and the Petitioner
agreed that the appropriate collective-bargaining unit
for the election would be:
All permanent servicemen, drivers, and mechanics
employed at the Employer's 401 W . Bear Street
location, excluding all office clerical employees,
professional employees, guards and supervisors as
defined in the Act. [Emphasis supplied.]
Thereafter, at the election, the ballots of eight voters
were challenged by the Board agent because their
names did not appear on the eligibility list. In his
report, the Regional Director recommended that the
challenges to all eight voters be overruled since he
found the eight were permanent seasonal employees
of the type that the Board customarily includes in its
unit determinations when the status of such employ-
ees is contested. The Employer argues in its excep-
tions that the parties, before signing the stipulation,
had agreed that all seasonal employees would be
excluded from the unit and, therefore, that the
Regional Director was in error in recommending the
inclusion of the seasonal drivers. Petitioner, however,
argues that its understanding of the stipulation was
that permanent seasonal drivers were to be included
in the unit.
The Regional Director did not, in fact, advert to
any possible agreement that the parties may have
had with regard to the inclusion or exclusion of those
employees whose ballots are now at issue . Rather, he
treated the situation as one in which he was called
the Employer's exceptions to the Regional Director's report on Petitioner
We note that copies of the exceptions were served timely on the Board and
Petitioner 's attorney Petitioner has not demonstrated how it was prejudiced
by such lack of service In the circumstances of this case , including the fact
that Petitioner has filed a response to the Employer's exceptions and the
fact that the exceptions are not an ex parse communication to the Board, we
reject Petitioner's argument that the Employer's exceptions be stricken
210 NLRB No. 145
BUCKLEY SOUTHLAND OIL
upon to make an original unit determination and, on
that basis, applying the Board's standard criteria on
community of interests, he concluded that these
seasonal drivers properly belonged in the unit.
Contrary to the Regional Director, we view our role
in stipulated unit cases as more circumscribed than
in cases where we initially determine the appropriate
unit. For, in stipulated unit cases, our function
normally is to ascertain the parties' intent with
regard to the disputed category or employee and then
to determine whether such intent is inconsistent with
any statutory provision or established Board policy.
Here, however, on the special facts of this case, we
can not ascertain the parties' intent with regard to
the stipulation since we find that the parties did not
reach a meeting of the minds as to the composition
of the unit in the stipulation. In such circumstances,
we have decided to void the first election which was
run on the basis of that stipulation.
In finding that the parties did not reach a meeting
of the minds on the stipulation, we take note of the
two differing interpretations that the parties have
placed on the stipulation as set out above. We note
too that although the Employer argues that the
parties had orally agreed to exclude the seasonals, as
reflected in the stipulation's inclusion of only
"permanent" employees, it also admits that prior to
the election, when the status of employee John
Ashley, a seasonal employee, was raised, the parties
agreed that if Ashley attempted to vote his ballot
would be challenged, and it "would not be counted
pending post election procedures. " (Emphasis sup-
plied.) It would appear that if the parties were under
the same impression of the status of their agreement
that the Employer now urges there would have been
no need to await "post election procedures" to
determine Ashley's vote. He would have been, by
agreement of the parties, excluded from voting.
Having determined that there was no meeting of
the minds on the stipulation, and having voided the
first election, we shall not now direct that a second
election be held. Rather, we shall remand this case to
the Regional Director in order that he may: (a) assist
the parties to reach agree-Went on an appropriate unit
and incorporate that unit in a new stipulation or (b)
in the absence of a new stipulation, set the petition
down for a hearing on the unit issue.
ORDER
It is hereby ordered that the election in the above-
entitled proceeding held on December 14, 1973, be,
and it hereby is, set aside.
Presumably for the purpose of affording the parties an opportunity to
come to a meeting of minds However, the affidavits submitted by the
parties reveal that they attempted to do so with respect to at least one
seasonal driver , and that they ended up agreeing that he should vote a
1061
IT IS FURTHER ORDERED that in the event the parties
are unable to enter into a new stipulation containing
an appropriate agreed-upon unit a hearing be held
before a duly designated Hearing Officer for the
purpose of receiving evidence as to the appropriate
composition of the unit herein.
IT IS FURTHER ORDERED that the above-entitled
matter be, and it hereby is, referred to the Regional
Director for Region 3 for the purpose of conducting
such hearing, and that the said Regional Director be,
and he hereby is, authorized to issue notice thereof in
the event the parties are unable to stipulate as to an
appropriate bargaining unit.
MEMBER FANNING, dissenting:
I agree with the majority for the reasons they note
that the parties here have not reached a meeting of
the minds as to whether the words "permanent
drivers," as used in the description of the unit set out
in the Stipulation for Certification Upon Consent
Election, were intended to include or exclude
seasonal drivers. Unlike the majority, however, I
would not now remand this case but would proceed
to a determination of whether the challenges to the
seasonal drivers' ballots should be overruled or
sustained. In such a determination, I would use the
Board's usual rules on eligibility and conclude that
the seasonal drivers properly belong in the unit, and
therefore I would overrule the challenges to their
ballots.
The Board's policy of honoring parties' stipulations
is undertaken in the interest of the expeditious
handling of representation cases and to that end the
Board allows parties, within certain limits, to
stipulate to the appropriate unit, thereby waiving the
preelection hearing and going directly to an election
in the agreed-upon unit. Such a procedure presup-
poses, of course, a stipulation whose meaning is clear
to all the parties. Here, there is no doubt that the
parties clearly stipulated to a unit of all "permanent
servicemen, drivers, and mechanics," but, because of
the parties different view as to the intended meaning
of the word "permanent," there is doubt as to the
status of seasonal drivers under the stipulation. It is
in these circumstances that the majority wishes to
return this case to the parties for further proceed-
ings.4 I think it is neither good law nor good policy to
do so. It is not good law because the Board clearly
has the power to determine eligibility where that
stipulated unit, for whatever reason, is rendered
ambiguous.5 It is also not good policy to return this
case to the parties now, for such action will only
challenged ballot
5 In Ctarostat Mfg Co, Inc, 105 NLRB 20, 22-23, the Board noted that,
where there had been no "meeting of the minds" as to the status of certain
employees in a unit, that it "of necessity" had to make its own unit
(Continued)
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further prolong this proceeding in direct contradic-
tion to the parties' reasons for entering into the
stipulation in the first place.
Therefore, I would now exercise the Board's power
to determine inclusions and exclusions in the unit in
accord with the Board' s usual rules on eligibility .6
Under those rules, the seasonal employees whose
ballots were challenged were eligible to vote if they
shared a sufficient community of interests with
bargaining unit employees and had a reasonable
expectation of recall.7 I would find, for those reasons
set out by the Regional Director, that the eight
challenged voters met those criteria and were
therefore eligible to vote. Accordingly, I would
remand this case to the Regional Director with
instructions to open and count the eight challenged
ballots. In the event the revised tally of ballots
showed that Petitioner had received a majority of the
valid ballots cast, I would issue a Certification of
Representative. If, however, the revised tally showed
that Petitioner had not received a majority of the
valid ballots cast, I would adopt the Regional
Director's recommendation and order the first
election set aside on the basis of Petitioner's
Objection 18 and would direct a second election.
determination as to those employees. And, with respect to the proper test to
be used, I note that in Knapp-Sherrill Company v. N LR B, 488 F 2d 655
(C.A. 5, 1974), enfg. 196 NLRB 1072, the Fifth Circuit rejected the
employer's contentions that the Board had erred in deciding certain
challenges to the ballots of seasonal employees in terms of the Board's
customary rules rather than in terms of whether the challenged voters were
eligible to vote as provided by the parties in their stipulation for certification
since the court concluded it had not been shown the parties had reached
any understanding as to the meaning of the printed eligibility clause The
court noted that "[a ]bsent clear evidence of the parties' intention to apply
some other test" the Board could construe the stipulation as incorporating
the Board rule on eligibility . See also N L R B v. Midwest Television Inc.,
370 F 2d 287, 289 (C.A. 7, 1966), denying enforcement of 150 NLRB 413,
where the court in dicta noted that "if a stipulation proved to be ambiguous
as applied to particular employees , the Board could properly resort to
'community of interest' in resolving the ambiguity."
6 See Knapp-Sherrill Company v. N.LR B., supra
7 Kelly Brothers Nurseries, Inc, 140 NLRB 82, 85-86.
8 The conduct involved in that objection , i.e., the Employer's president's
calling into his office each eligible employee on an individual basis shortly
before the election and urging each to reject the Petitioner , was clearly
conduct that is impermissible during an election campaign. See General
Shoe Corporation (Marman Bag Plant), 97 NLRB 499.