Prior Aviation Service, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1975

220 N.L.R.B. 460 (N.L.R.B. 1975)

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior Aviation Service, Inc. and Communications
Workers of American , AFLr-CIO, Petitioner. Case
3-RC-6201
September 19, 1975
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 3 of the
National Labor Relations Board on January 7, 1975,
an election by secret ballot was conducted in the
above-entitled proceeding on January 23, 1975, un-
der the direction and supervision of said Regional
Director. Upon conclusion of the election, a tally of
ballots was furnished the parties which showed that,
of approximately 18 eligible voters, 18 ballots were
cast, of which 9 were for, and 9 were against, the
Petitioner. There were no challenged ballots. On Jan-
uary 29, 1975, the Petitioner filed timely objections to
conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations Series 8, as amended,
the Regional Director investigated the objections and
on March 5, 1975, duly served on the parties a Re-
port on Objections in which he found merit in Objec-
tion 2 and recommended that a new election be held.
He further recommended that, in the event the Board
did not find merit in Objection 2, a hearing be direct-
ed by the Board on the issues raised by Objection 1.
The Employer has filed timely exceptions to the Re-
gional Director's report and a supporting brief.
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
purpose 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 Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time aircraft me-
chanics and service employees employed by the
Employer at its Cheektowaga, New York facility
excluding all office clerical employees, profes-
sional employees, guards and supervisors as de-
fined in the Act.
5. The Board has considered the Regional
Director's report, the Employer's exceptions and
brief, and the entire record in this case, and hereby
adopts the Regional Director's findings, conclusions,
and recommendations only to the extent consistent
herewith.
At the time the consent election agreement was
executed, the parties signed a Norris-Thermador I
stipulation with respect to eligible employees. Don-
ald Meyer and David Bain were among the employ-
ees agreed to be eligible voters. At the preelection
conference held by the Board agent conducting the
election, no issue was raised by the Petitioner with
respect to the eligibility of either Meyer or Bain, and
both voted unchallenged ballots. Thereafter, the Peti-
tioner filed two objections to the election. Objection
I asserts that Meyer was an ineligible voter by reason
of his supervisory status. Objection 2 asserts that
Bain was an ineligible voter by reason of his being a
relative of the Employer's president. The Regional
Director states that his investigation with respect to
Objection I is inconclusive as to Meyer's supervisory
status, and he recommends that a hearing be con-
ducted in the event the Board does not adopt his
recommendation on Objection 2. The Regional Di-
rector finds that Bain was an ineligible voter and rec-
ommends that Objection 2 be sustained and that a
new election be directed.
We find merit in the Employer's exception to the
Regional Director's recommendation. In not follow-
ing the Board's longstanding policy with respect to
objections in the nature of postelection challenges,
the Regional Director relies on the following facts in
his report:
The investigation revealed that about a week
prior to the date of the election, the Petitioner
raised a question as to the eligibility of Bain to
the Board Agent who had held a consent confer-
ence on January 7. Subsequently, the Board
Agent informed the Petitioner that the Board
Agent who would be conducting the election
'would be instructed not to allow a challenge to
Bain 's vote by the Petitioner, in view of the fact
that the Petitioner had agreed to the Norris-
Thermador eligibility list which contained Bain's
name.
Although the Regional Director's report does not in-
dicate that the Employer was contacted by the Board
agent, it appears from the Employer's brief that the
Board agent did contact the Employer's attorney and
advise that the Petitioner had questioned Bain's eligi-
bility. The attorney advised that the Employer was
1 Norris- Thermador Corporation, 119 NLRB 1301 (1958).
220 NLRB No. 70
PRIOR AVIATION SERVICE, INC.
willing to have the consent election agreement set
aside and to proceed to a hearing on any issue of
eligibility. The Board agent replied that he would
check on the matter. The attorney heard nothing fur-
ther from the Board agent and no eligibility issue was
raised in the preelection conference by either the Pe-
titioner or the Board agent conducting the election.
The facts presented with respect to Objection 1 are
(1) the parties agreed in the Norris-Thermador stipu-
lation that Meyer was an eligible voter, and (2) there
is no evidence or contention that the Petitioner raised
any issue with respect to Meyer's eligibility other
than in this postelection objection, or that the Board
agent informed Petitioner that it could not challenge
Meyer as a supervisor by reason of the Norris-Ther-
mador stipulation.' The Board has long held that it
will not entertain postelection challenges, or objec-
tions which are in the nature of postelection chal-
lenges .; There is no justification for departing from
this traditional policy with respect to Objection 1.
Accordingly, we do not agree with the Regional
Director's recommendation that Objection 1 requires
a hearing, and we hereby overrule the objection.
With respect to Objection 2, the Regional Director
found that Bain was an ineligible voter under Section
2(3) of the Act. Bain 's mother is married to the
Employer's president. Section 2(3) has no application
to this type of stepson relationship.4 Accordingly,
Bain's eligibility does not involve a statutory exclu-
sion , but rather a determination of his community of
interest or lack of community of interest with other
employees in the unit. We deem it unnecessary to
decide whether, in the absence of the Norris-Therma-
dor agreement, the Board would have found such
community of interest or lack of community as to
warrant his inclusion or exclusion from the unit.'
Where, as here, the eligibility agreement drawn up by
the parties conforms to the requirements set forth by
the Board in Norris-Thermador no circumstances are
2 The Regional Director cites Fisher-New Center Company, 184 NLRB 809
(1970), which involves ballots being challenged on grounds of supervisory
status , but which were counted on the basis of representations by the Board
agent that the Norris-Thermador stipulation was irrevocable even as to a
challenge based on a supervisory status. That decision is not appropriately
applied to a factual situation in which the asserted supervisor is not chal-
lenged or his eligibility even questioned and the question of whether a chal-
lenge could be made on the basis of a supervisory status was not even raised
at the election.
D N.L.R.B. v. A J Tower Company, 329 U.S 324 (1946); Oppenheim Col-
lins & Co., 108 NLRB 1257 (1954); Corral Sportswear Company, 156 NLRB
436, fn . 4 (1965 ); Crown Machinery Company, Inc, 205 NLRB 237 (1973)
4Cf. Cerni Motor Sales, Inc, 201 NLRB 918 (1973)
5 However , we note that the Regional Director makes no finding that
Bain enjoys any special privileges by reason of his relationship to the
Employer's president See American Chemical Corporation, 215 NLRB No
21 (1974); Cherrin Corporation v N L R B, 349 F.2d 1001 (C.A. 6, 1965)
The extent to which Bain is dependent on his stepfather for support is not
clear. He receives his deceased father's social security benefits and a trust
fund provides for his education.
461
presented warranting departure from the Board's
practice of honoring "concessions made in the inter-
est of expeditious handling of representation cases,
even though there may be some question about in-
cluding certain employees in the unit, or excluding
them from it, were the matter litigated." 6
We find the Norris-Thermador stipulation binding
on the parties as to the eligibility of Bain. According-
ly, we do not view as prejudicial the advice furnished
by the Board agent to the Petitioner with respect to
challenging Bain 's ballot. To permit a party to use his
Norris-Thermador stipulation as a grounds for setting
aside the election based merely upon his ex parte
communications with a Regional Office employee'
will only discourage parties from trying to resolve
eligibility issues between themselves and proceeding
promptly to an election rather than a hearing.
We find that where a party does not intend to hon-
or the signed commitment it has made under a Nor-
ris-Thermador stipulation, it is obligated to give writ-
ten notice to the other party of such intent. At the
very least, this intent should be communicated to the
other party no later than the preelection conference
with the Board agent, rather than waiting until after
the election is over and the results are known. A par-
ty should not be permitted to use his own Norris-
Thermador agreement as a basis for objections.
In light of the foregoing, we find that the
Petitioner's objections are impermissible postelection
challenges. Accordingly, as the tally of ballots shows
that the Petitioner has not received a majority of the
valid ballots cast, we shall certify the results of the
election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Communications
Workers of America, AFL-CIO, and that said labor
organization is not the exclusive representative of all
the employees, in the unit herein involved, within the
meaning of Section 9(a) of the National Labor Rela-
tions Act, as amended.
MEMBER FANNING, concurring:
I concur in the result. The challenges in question
are postelection. Petitioner failed to challenge at the
6 Pyper Construction Company, 177 NLRB 707, 708 (1969)
7 The result is the same if, as stated by the Employer, the Board agent did
advise that the Petitioner had called and was questioning Bain's eligibility.
When the Board agent did not contact him further with respect to the offer
to go to a hearing if there was any issue of eligibility, it could reasonably
assume that the matter had been dropped The fact that no mention of any
question of eligibility was made by the Petitioner at the preelection confer-
ence would tend to verify this conclusion
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election though , in my view , it was entitled to do so MEMBER JENKINS , concurring in the result:
despite the Norris-Thermador list because of the stat- I concur in the result reached by my colleagues,
utory exclusion issues it was attempting to raise. because I would not accept postelection challenges.