Rosehill Cemetery Association

National Labor Relations Board - Board Decisions

Jul 26, 1982

262 N.L.R.B. 1289 (N.L.R.B. 1982)

ROSEHILL CEMETERY ASSOCIATION
Rosehill Cemetery Association and Cemetery Work-
ers and Greens attendants Union, Local 365,
Service Employees International Union, AFL-
CIO, Petitioner. Case 22-RC-8643
July 26, 1982
DECISION AND DIRECTION
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the objections and
challenges to an election held on November 6,
1981,1 and the Regional Director's report recom-
mending disposition of same. The Board has re-
viewed the record in light of the exceptions and
briefs, and hereby adopts the Regional Director's
findings and recommendations 2 to the extent con-
sistent herewith.
On October 27, 1981, at an informal conference
held at the Board's Newark Regional Office, the
parties orally agreed to exclude interment supervi-
sors from the bargaining unit. At that time, the
Employer identified Nicholas McKluskey and
Manuel Luiz as its interment supervisors. The Peti-
tioner asserts that, after this conference but before
the election, it learned that Luiz was a machine op-
erator, not an interment supervisor, and therefore
he was eligible to vote.
The Regional Director held that the parties in-
tended to exclude all interment supervisors from
the unit and that the parties orally agreed that Luiz
was an interment supervisor. The Regional Direc-
tor, citing Banner Bedding, Inc., 214 NLRB 1013
(1974), held the Petitioner to this oral stipulation
and recommended that the challenge to Manuel
I The Regional Director conducted the election pursuant to a Stipula-
tion for Certification Upon Consent Election. The tally was 5 for, and 6
against, the Petitioner; there were 3 challenged ballots, a sufficient
number to affect the results.
I The Regional Director recommended that a hearing be held on addi-
tional objectionable conduct he uncovered in the course of his investiga-
tion. The Employer excepts to the direction of a hearing and argues that
we should overrule our longstanding policy, restated in American Safery
Equipment Corporation, 234 NLRB 501 (1978), that permits regional di-
rectors to investigate and act upon findings of election interference even
though these findings are not encompassed within the objections filed by
the parties. The Employer also moves for a stay of the hearing and, in
the event the stay is denied, for a more specific statement of the objec-
tionable conduct We decline to follow the Employer's urgings and deny
its motions.
Chairman Van de Water would not consider conduct which has not
been specifically and timely alleged to be objectionable, in accord with
the position set forth in the dissent in Dayton Tire & Rubber Co., 234
NLRB 504 (1978).
In the absence of exceptions. we adopt, pro forma, the Regional Direc-
tor's recommendation that the challenge to the ballot of Jeffrey Schnarr
be sustained.
Luiz' ballot be sustained. The Petitioner excepted
to this finding, and we find merit in this exception.
The Board's well-established rule is that only
where the parties enter into a written and signed
agreement which expressly provides that issues of
eligibility resolved by it shall be final and binding
upon the parties will we consider such an agree-
ment a final determination of the eligibility issues
treated in the agreement, unless the agreement is in
whole or in part contrary to the Act or our estab-
lished policy. Norris-Thermador Corporation, 119
NLRB 1301, 1301-02 (1958). Banner Bedding, Inc.,
supra, relied on by the Regional Director here, es-
tablished a limited exception to the Norris-Therma-
dor rule. In Banner Bedding, an oral preelection
stipulation excluded a regular part-time employee
from the unit. Both parties in that case admitted
the existence of the oral agreement and it was clear
that, but for the oral agreement, the parties were
prepared to proceed to a hearing on the eligibility
issue and would not have signed the consent elec-
tion stipulation. We found that in such a situation
such an agreement did not contravene any Board
policy or statutory proscription and we upheld the
employee's exclusion from the unit. Id. at 1014. We
were careful to note, however, that Banner Bedding
did not present the issue of whether the Board
would honor preelection agreements concerning
the statutory eligibility of employees. Id. at 1013,
footnote 2.
Subsequently, we held that Banner Bedding
cannot be read as allowing oral stipulations to pre-
clude challenges to ballots based on a statutory ex-
clusion, Esten Dyeing & Finishing Co., Inc., 219
NLRB 286, 287 (1975), and recently we stated that
we will not be bound by parties' stipulations on
issues of supervisory status, A & B Cartage, 256
NLRB 14 (1981). The Petitioner here contends that
Manuel Luiz is not a supervisor. Because the Peti-
tioner raises a statutory question, the parties' stipu-
lation does not bind us and the narrow Banner Bed-
ding exception does not apply. Contrary to the Em-
ployer's contention, the statutory issue is raised for
our resolution by stipulations, like the instant one,
that exclude alleged supervisors from the unit as
well as by those which include them. See NET
Television, Inc., a wholly owned subsidiary of Educa-
tional Broadcasting Corporation, 252 NLRB 640, 641
(1980). We therefore reject the Regional Director's
recommendation that we sustain the challenge to
Manuel Luiz' ballot and direct that a hearing be
held on the question of his supervisory status.
Since our disposition of Luiz' ballot could make
the ballot of Jose Elvir determinative of the elec-
262 NLRB No. 164
1289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion results, we also direct that the hearing include
consideration of Elvir's status.3
DIRECTION
It is hereby directed that a hearing be held
before a hearing officer, to be designated by the
Regional Director for Region 22, for the purpose
of taking evidence with respect to the additional
objectionable conduct discovered by the Regional
Director during his investigation of the parties' ob-
jections, and with respect to the issues of whether
Manuel Luiz is a supervisor and whether Jose
Elvir is a supervisor and/or managerial employee.
3 The Regional Director found that the question of Jose Elvir's status
could best be resolved on the basis of record testimony at a hearing.
However, because his disposition of the ballots of Jeffrey Schnarr and
Manuel Luiz rendered Elvir's ballot nondeterminative of the election re-
sults, the Regional Director recommended that Elvir's ballot remain un-
opened and uncounted.
The designated hearing officer shall prepare and
cause to be served on the parties a report contain-
ing resolutions of credibility of witnesses, findings
of fact, and recommendations to the Board as to
the disposition of the issues. Within 10 days from
the date of issuance of such report, either party
may file with the Board in Washington, D.C., eight
copies of exceptions thereto. Immediately upon
filing such exceptions, the parties filing same shall
serve a copy on the Regional Director. If no ex-
ceptions are filed, the Board will adopt the recom-
mendations of the hearing officer.
IT IS FURTHER DIRECTED that the case be re-
manded to the Regional Director for the aforemen-
tional purposes, including the conduct of a hearing,
and the Regional Director is hereby authorized to
isue notice thereof.
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