Southampton Marine Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1975

217 N.L.R.B. 649 (N.L.R.B. 1975)

SOUTHAMPTON MARINE CORPORATION
Southampton Marine Corporation and Teamsters
Union 158 a/w International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America, Petitioner . Case 4-RC-11252
April 30, 1975
DECISION AND DIRECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
Pursuant to authority granted the National Labor
Relations Board under Section 3(b) of the National
Labor Relations Act, as amended, a three-member
panel has considered determinative challenges in an
election held November ,6, 1974,' and the Regional
Diirector's report recommending disposition of same.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and hereby adopts the Regional
Diirector's findings and recommendations, only to the
extent consistent herewith.
The Board does not adopt the Regional Director's
recommended disposition of the ballot of employee Is-
mael Ortez Crespo. That ballot was challenged by the
Employer on grounds that his name did not appear on
the eligibility list as agreed to by the parties on October
22, 1974,2 under the terms of the Board's decision in
Norris-Thermador Corporation, 119 NLRB 1301
(1958). However, the Excelsior` list submitted by the
Employer on October 25 included Crespo's name and
address with the notation: "Not on the list that was
presented on 10/22/74 to the Board. This was due to
an oversite [sic] on our part." The Petitioner then
promptly requested that Crespo's name be added to the
list of eligibles, but the Employer refused to do so.
The Regional Director sustained the challenge to
Crespo's ballot finding that as the parties' October 22
agreement met the Norris-Thermador criteria, it was
therefore, final and binding on the issue of voter eligibil-
ity; and that under the holding of the Board in Pyper
Construction Company, 177 NLRB 707 (1969), the
inadvertent omission of a challenged voter employee
from such a list would not affect the list's finality and
exclusivity as a determinant of voter eligibility.
It is of course true that the Board does not look with
favor upon the use of its challenged ballot procedures
as a means of undermining the effect of a voter eligibil-
ity agreement executed by the parties in accord with the
Norris-Thermador case requirements. Accordingly,
and as indicated by the Pyper case, supra, the Board
I The election was conducted pursuant to a stipulation for certification
upon consent election The tally was: 17 for and 18 against the Petitioner;
there were 3 challenged ballots.
2 Unless otherwise stated, all dates are 1974.
3 Excelsior Underwear Inc., 156 NLRB 1236 (1966).
649
will not usually resolve disputed issues concerning any
omissions from the agreed-upon eligibility list, and will,
therefore, ordinarily reject a party's attempt to raise
such issues, without regard to merit, and sustain a chal-
lenge to the ballot of any employee whose name did not
appear on that list.
Here, however, there is no dispute concerning Cres-
po's eligibility as a voter; there is no question that the
parties recognized that the failure to so identify Crespo
on the written eligibility list was a mistake; and there
is also no question that the mistake was called to the
Board's attention more than 10 days before the election
was held, and that the challenge procedure was used
because the error had not been rectified (as it could
have been) before the election was conducted.
We perceive no sound policy reasons for sustaining
the challenge to an employee's ballot in such circum-
stances, thereby depriving him of the right to cast a
ballot to which all parties conceded he was entitled.
We do not believe that Norris-Thermador was in-
tended to deprive an otherwise eligible voter of his
ballot when the inadvertence of excluding his name
from the list was admitted and discovered in enough
time to amend the agreement to include the employee,
without any disruption of the election procedures, and
where the parties in effect were agreed that the em-
ployee's name would have been included on the list but
for such an error.' Consequently, we overrule the
challenge to Crespo's ballot, and direct that the ballot
be opened.
DIRECTION
It is hereby directed that the Regional Director for
Region 4 shall, pursuant to the Board's Rules and
Regulations, Series 8, as amended, within 10 days from
the date of this Order, open and count the ballots of
Ismael Ortez Crespo, Jacinto Valdes, and John Cart-
wright, and thereafter prepare and cause to be served
on the parties a revised tally of ballots, including
therein the count of such ballots, and to proceed further
to issue the appropriate certification for the following
appropriate unit:
All production and maintenance employees,
truckdrivers, receivers, warehousemen, working
leaders and research and development employees
at its one plant in Berlin, New Jersey; excluding,
all office clerical employees, guards and supervi-
sors as defined in the Act.
4 Cf Banner Bedding, Inc, 214 NLRB No. 139 (1974).
217 NLRB No. 113