Pullman Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1967

167 N.L.R.B. 571 (N.L.R.B. 1967)

TRAILMOBILE DIV., PULLMAN INC. 571
Trailmobile Division , Pullman Incorporated and
United Automobile , Aerospace & Agricultural Im-
plement Workers (UAW), International Union,
AFL-CIO. Cases 16-CA-2401 and 16-RM-2701
September 26, 1967
ORDER CONSOLIDATING CASES AND
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On June 28, 1965, United Automobile,
Aerospace & Agricultural Implement Workers
(UAW), International Union, AFL-CIO,' was cer-
tified by the National Labor Relations Board in
Case 16-RM-270 as the representative of the
production and maintenance employees of Trailmo-
bile Division, Pullman Incorporated,3 following an
election pursuant to a stipulation for certification
upon consent election and the subsequent resolu-
tion of challenged ballots by the Board.4 Because it
took the position that the said certification was er-
roneous, the Respondent refused to bargain with
the Union and, on December 30, 1965, the Board
issued its Decision and Order in Case
16-CA-2401,5 finding that the Respondent thereby
violated Section 8(a)(5) and (1) of the Act.6 The
Respondent thereafter filed a petition for review of
the Board's said Order, which was granted by the
United States Court of Appeals for the Fifth Cir-
cuit.' The Court agreed with the Board's finding
that the 13 leadmen were supervisors and ineligible
to vote, but concluded that as a matter of law Lonzo
Higginbotham was an employee of the Respondent
on the date of the election and, therefore, eligible to
vote, and that the Union's challenge to his vote
must be rejected. The Court further found that as
Higginbotham's ballot, added to the two which the
Board had ruled eligible, could affect the result of
the election, these three ballots must be opened and
counted. Accordingly, the Court set aside the
Board's Order.
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
powers in connection with this case to a three-
member panel.
The record shows that the tally of ballots, upon
which the certification was based, showed that the
Union received 171 votes and that there were 168
cast against it. In view of our finding concerning
Denton and Henry, and as we accept the Court's
opinion that the ballot cast by Higginbotham should
have been opened and counted, it is clear that the
ballots of Denton, Henry, and Higginbotham could
have affected the result of the election. The Union's
majority status thus having been cast in doubt, it
follows, as a result of the Court's opinion, that there
was merit in the Respondent's contention in the
original unfair labor practice hearing herein that it
was not obligated to bargain because of its good-
faith doubt as to the Union's majority status. In
these circumstances, we are constrained to dismiss
the complaint in its entirety.
Since it appears that the question of the Union's
majority status in Case 16-RM-270 remains un-
resolved and must now be reconsidered, we hereby
order that Case 16-RM-270 be, and it hereby is,
consolidated with Case 16-CA-2401 for this pur-
pose and for purposes of this Decision. Further, we
shall order that the certification of the Union issued
on June 28, 1965, in Case 16-RM-270, be vacated
and, in view of the Court's decision, we shall direct
the Regional Director to open and count the ballots
of Denton, Henry, and Higginbotham, and issue a
revised tally of ballots with service upon all parties.
Accordingly,
IT IS HEREBY ORDERED that the complaint in Case
16-CA-2401 be, and it hereby is, dismissed in its
entirety.
IT IS HEREBY FURTHER ORDERED that the certifi-
cation of representative issued on June 28, 1965, in
Case 16-RM-270, be, and it hereby is, vacated.
IT IS HEREBY DIRECTED that as part of the in-
vestigation to ascertain representatives for the pur-
poses of collective bargaining among the employees
of Trailmobile Division, Pullman Incorporated,
Longview, Texas, in the appropriate unit, the Re-
gional Director for Region 16 shall, pursuant to Na-
tional Labor Relations Board Rules and Regula-
tions, Series 8, as amended, within 10 days from the
date of this Direction, open and count the ballots of
Weldon Denton, Edward Henry, and Lonzo Hig-
ginbotham, and thereafter prepare and cause to be
served upon the parties a revised tally of ballots, in-
cluding therein the count of said challenged ballots.
In the event that the revised tally of ballots shows
that the Union has received a majority of the valid
ballots cast, the Regional Director shall issue a cer-
tification of representative. However, in the event
that the revised tally of ballots shows that the
Union has not received a majority of the valid votes
cast, the Regional Director shall so report to the
Board, in order that the Board may rule on the
Union's objections to the election still pending.
I For the reasons hereinafter set forth , the Board on its own motion is
consolidating Case 16-RM-270 with Case I6-CA-2401
' Herein called the Union
Herein called the Respondent
i Not published in NLRB volumes The Union filed timely objections
to the election and challenged the ballots of Lonzo Higginbotham , Weldon
Denton , Edward Henry , and 13 leadmen The Board sustained the chal-
lenges to the ballots of Higginbotham and the 13 leadmen and overruled
the challenges to the ballots of Denton and Henry Because the Union
won the election, the Board did not rule on the Regional Director's report
on objections, and, as the votes of Denton and Henry were not determina-
tive of the election, the Board directed that those ballots remain
unopened
(Footnotes continued on following page)
167 NLRB No. 77
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Footnotes continued from preceding page) and that his ballot should have been counted There were no exceptions
5 156 N LRB 483 taken to the Board's resolution of the challenges to the ballots of Denton
The Respondent contended that the leadmen were not supervisors, and Henry
that the challenges to their ballots should have been overruled, and that Y Tradmohde Division, Pullman Incorporated v N L R B 379 F 2d 49
their ballots should have been counted The Respondent also contended (C A 5) The Board, in its answer to the petition for review, requested en-
that Lonzo Higginbotham was an employee of the Respondent at the time forcement of its Order
of the election, that the challenge to his ballot should have been overruled.