Prudential Insurance Co.

National Labor Relations Board - Board Decisions

Nov 21, 1979

246 N.L.R.B. 547 (N.L.R.B. 1979)

1HE PRUIDENTIAI. INSt'RAN(I (()OMPANY
The Prudential Insurance Company of America, and
Insurance Workers International Union. AFL-CIO,
Petitioner. Case 7 RC- 15383
November 21, 1979
DECISION AND I)IRECTION
BY CHIAIRMAN ANNIN(; ANI) MtMIu RS JI NKINS
AND PNtI ()
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 7 on May 14, 1979, an election b secret
ballot was conducted on June 7, 1979, under the di-
rection and supervision of said Regional Director. At
the conclusion of the election. the parties were fur-
nished with a tally of ballots which showed that there
were approximately six eligible voters and seven hal-
lots were cast of which three were for, and two
against, the Petitioner, and two were challenged. The
challenged ballots were sufficient in number to affect
the results of the election. Neither parts filed objec-
tions to the conduct of the election or to conduct af-
fecting the results of the election.
The Regional Director investigated the challenged
ballots and on July 25., 1979, issued his Report and
Recommendation on Challenged Ballots. In his re-
port, the Regional Director recommended that the
challenges to the ballots of Sandra Smith and Eli7a-
beth Sullivan be overruled, that these ballots he
opened and counted, and that a revised tally of bal-
lots issue.
The Employer filed exceptions and a supporting
brief, limited only to the recommendation that the
challenge to Sullivan's ballot be overruled.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
I. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the pur-
poses 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 constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time permanent fiel( service stat' elm-
plovees. including service assistants. service rep-
resentatives, senior service representatives. and
service coordinators employed by the mploer
at its Grandmont District office located at 29201
Telegraph, Southfield. Michigan: hut excluding
confidential employees. guards, and supervisors
as defined in the Act, and all other cmplo ees.
5. 'The Board has considered the Recional I)irec-
tor's Report and Recommendation on (hallenged
Ballots, the Iimplo er's exceptions and brief, and the
entire record in this case and herchb adopts the Re-
gional [)irector's findings. conclusions, and recoin-
mendations. B only to the extent consistent herewith.
The Regional Director recommended overruling
the challenge to the ballot of' lizaheth Sulliian be-
cause she was not a confidential emplo\ee.
The Employer contends that, even if Sullivan was
not a confidential employee. Sullivan's position of
assistant to the manger (ATI'M) was not included in
the stipulated unit and that the Regional Director
erred in not considering the original intent of the par-
ties as expressed in the stipulated unit. We find merit
to the Frmploer's exceptions.
Established Board law dictates that in stipulated
unit cases "the Board's function is to ascertain the
parties' intent with regard to the disputed employee
and then to determine whether such intent is inconsis-
tent with any statutory provision or established Board
policy."' There is no contention h an> parts in this
case that the exclusion of Sullivan from within the
stipulated unit of field service staff' employees would
he inconsistent with any statutory provision or Board
polics. Thus, the only issue is whether or not the par-
ties' expressed intent was to exclude Sullivan from the
unit. The stipulation clearly enumerates those posi-
tions that are considered to be field service staff posi-
tions "service assistants, service representatives. sen-
ior service representatives, and service coordinators.
. ." The assistant to the manager (ATTM) position
was not named. Further, the parties' intent to exclude
Sullivan from the unit is demonstrated by the lan-
guage "and all other employees." Both parties were
aware of the ATTM position at the time the stipula-
tion was signed. The Petitioner did not include this
position in its petition: nor did the Petitioner object to
the absence of Sullivan's name from the Excelsior list.
In addition, the Petitioner has not sought to include
the ATTM position in the other clerical units that it
In the absence of exceptions thereto. the Board adopt. pro rit. the
Regional Director's recommendation that the challenge to the ballot of San-
dra Smith he overruled
2 The B F. odrih (cormparun. 115 NlRB 722. 724 11
9
56}: if eerhaeuser
(;rn,mam. 173 NlRB 1170. 1172 (1968.
T' he Trhun (or,mpanvi 190 NRB 398 399 (19711: 14hc (loud Prd-
ucts, Inr. 214 NlRB 516 (1974): AfIS (nurwr StnIes. 242 Nl RB 405
(1979).
246 NLRB No. 90
547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represents. Thus, it is apparent that the parties in-
tended to exclude Sullivan's position. We have held
that, "when parties stipulate to the unit in which an
election is to be held, they must be held to their agree-
ments, as any other party is held to an agreement."4
Accordingly, we shall sustain the challenge to the bal-
lot of Elizabeth Sullivan.
4 Graham Ford, Inc, 224 NLRB 927. 928 ( 1976).
DIRECTION
It is hereby directed that the Regional Director for
Region 7 shall, pursuant to the Rules and Regulations
of the Board, within 10 days from the date of this
Decision and Direction, open and count the ballot of
Sandra Smith, and thereafter prepare and cause to be
served on the parties a revised tally of ballots and an
appropriate certification.
548