Pyper Construction Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 707 (N.L.R.B. 1969)

PYPER CONSTRUCTION COMPANY
Pyper Construction Company and Laborers'
International Union of North America , Local No.
1410, AFL-CIO, Petitioner. Case 9-RC-7905
June 30, 1969
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, BROWN, AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election, an election by secret ballot was
conducted on October 15, 1968, under the direction
and supervision of the Regional Director for Region
9, among the employees in the stipulated unit. At
the conclusion of the election, the parties were
furnished with a tally of ballots, which showed that
of approximately 22 eligible voters, 22 ballots were
cast, of which 11 were for, 10 against the Petitioner,
and 1 ballot was challenged. The challenged ballot
was sufficient in number to affect the results of the
election. On October 21, 1968, the Employer 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, on March 10, 1969,
issued and duly served upon the parties his Report
on Challenged Ballots and Objections to Election,
recommending that the Employer's objections be
overruled in their entirety. The Regional Director
further recommended that the challenged ballot be
opened and counted. Thereafter, on April 7, 1969,
the Employer filed a timely exception to the
Regional Director's Report insofar as it
recommended that the Board overrule objection No.
1, which alleged that the Petitioner violated the
24-hour rule in the Peerless Plywood case.' The
Petitioner filed a timely exception to the Regional
Director's Report insofar as it recommended that
the challenged ballot be opened and counted.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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.
'Peerless Plywood Company, 107 NLRB 427.
'The Employer also filed a motion pursuant to Sec 102.69 of the
Board ' s Rules and Regulations , Series 8, as amended, seeking a notice of
hearing with respect to the issues raised by the Petitioner 's exceptions and
brief, the Employer' s answering brief, and the report and recommendation
filed by the Regional Director . Upon due consideration of the Petitioner's
exceptions and brief, the Employer's answering brief and objection, the
Regional Director' s Report and Recommendation , the Board denies the
motion on the grounds that such pleadings do not raise substantial and
material issues with respect to the conduct or results of the election.
707
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. - A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties, we find that the following employees of the
Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All laborers employed by the Employer out of its
Centerville, Ohio facilities, but excluding all
equipment operators under contract with Local
18, International Union of Operating Engineers,
AFL-CIO, all office clerical employees,
professional employees, guards and supervisors as
defined in the Act, and all other employees.
5. The Board has considered the Regional
Director's Report, the Employer's exception, the
Petitioner's exception to the Regional Director's
report on the challenged ballot, and the entire
record in the case, and finds as follows:'
The Petitioner excepted to the Regional Director's
recommendation that the ballot of Ernest L. Jones
be opened and counted. On September 30, 1968, the
parties incorporated a Norris Thermador' eligibility
list containing the names of 22 employees into the
consent-election agreement. The eligibility list was
on company stationery, and contained the name,
address, and social security number of the eligible
employees. In addition, the list contained a
handwritten statement signed by the parties
providing that:
The above listed employees of the Employer are
agreed to be the only employees eligible to vote in
Case No. 9-RC-7905 in the election to be
conducted on October 15, 1968, and the parties
agree that by signing this list they are making
disposition of all questions of eligibility and this
resolution is final and binding on them.
During the course of the election the ballot of
Ernest L. Jones was challenged by the Board
agent because Jones' name did not appear on the
eligibility list.
Jones began his employment as a laborer for the
Employer on July 1, 1968. He continued such
'No exception having been taken thereto , we adopt the Regional
Director 's recommendation overruling Employer's objections 2 and 3. The
Employer's exception to the Regional Director's ruling on its objection I
raises no material or substantial issue of fact or law that warrants reversal
of the Regional Director's recommendation.
'119 NLRB 1301. The Board stated that parties to a representation
proceeding should be permitted to resolve definitively as between
themselves issues of eligibility prior to the election if they clearly evidence
their intention to do so in writing The Board concluded that where the
parties enter into a written and signed agreement which expressly provides
that issues of eligibility resolved therein shall be final and binding upon the
parties, the Board will consider such an agreement , and only such an
agreement, a final determination of the eligibility issues treated therein
unless it is, in part or in whole , contrary to the Act or established Board
policy.
177 NLRB No. 91
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment until September 14, 1968, when he was
incarcerated. On or about September 19, 1968,
Jones' wife informed him that his brother Herman
Jones, a foreman of the Employer, had told her that
Jones still had a job and could return to work upon
his release from jail. The Employer personally
contacted the judge who had sentenced Jones and
requested that Jones be released from jail,
approximately 10 days before his 20-day sentence
was completed. The Employer also advised the
Court that Jones had a job and could return to his
employment immediately upon his release. Jones
was released from jail on October 6, 1968, and he
returned to his prior position with the Employer on
October 12, 1968.
The Regional Director found that the Norris
Thermador rule is directed only at those eligibility
issues discussed and agreed to by the parties
involved, and that Jones' name was not on the list
and he was not discussed at the time the list was
prepared and signed by the parties herein. He found
further, that Jones was omitted from the eligibility
list through the inadvertence of an office employee,
and that it would be contrary to Board policy to
disenfranchise an employee when his eligibility vote
was never discussed. We disagree. The Board will
honor concessions made in the interest of
expeditious handling of representation cases, even
though there may be some question about including
certain employees in the unit, or excluding them
from it, were the matter litigated.' Here the
eligibility list drawn up by the parties conforms to
the requirements set forth by the Board in Norris
'Stanley Aviation Corporation, 112 NLRB 461
Thermador, since the parties entered into a written
and signed agreement which expressly provided that
issues of eligibility resolved therein shall be final and
binding upon the parties.
Contrary to the Regional Director's finding, we
deem irrelevant the fact that Jones may have been
excluded from the eligibility list through
inadvertence and not as the result of discussion and
agreement on his eligibility. We find that the parties
intended that the eligibility list be final and binding.
Accordingly, contrary to the Regional Director we
shall sustain the challenge to Jones' ballot. Since we
have sustained the Regional Director's
recommendation to overrule the Employer's
objections, and as the tally of ballots shows that the
Union has received a majority of the valid votes cast
in the election, we shall certify the Union as
bargaining representative.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Laborers' International
Union of North America, Local No. 1410,
AFL-CIO, has been designated and selected by a
majority of the employees of the Employer in the
unit found appropriate herein as their representative
for the purposes of collective bargaining and that,
pursuant to Section 9(a) of the National Labor
Relations Act, as amended, the said labor
organization is the exclusive representative of all
such employees for purposes of collective bargaining
with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment.