Stop 127, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1968

172 N.L.R.B. 289 (N.L.R.B. 1968)

STOP 127, INC.
Stop 127, Inc. and Bartenders ', Motel, Hotel and
Restaurant Workers, Local No. 222, Affiliated
With the Hotel and Restaurant Employees' and
Bartenders ' International Union , AFL-CIO. Case
9-RC-7563
June 26, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
Pursuant to a Stipulation for Certification Upon
Consent Election entered into by the parties and
approved by the Regional Director for Region 9, on
January 17, 1968, an election by secret ballot was
held on January 31, 1968, among certain em-
ployees of the Employer at Eaton, Ohio, under the
direction and supervision of the Regional Director.
At the conclusion of the election, the parties were
furnished with a tally of ballots which showed that,
of approximately 45 eligible voters, 41 cast ballots,
of which 20 were for, and 20 against, the Peti-
tioner, and I ballot was challenged. There were no
void ballots. The challenged ballot was sufficient to
affect the results of the election.
Thereafter, on February 5, 1968, the Petitioner
filed timely objections to the conduct affecting the
results of the election. In accordance with the Na-
tional Labor Relations Board Rules and Regula-
tions, the Regional Director conducted an in-
vestigation and, on April 18, 1968, issued and duly
served upon the parties his report on objections to
election and challenged ballot. He found that
Michael Brittain was challenged by the Board agent
conducting the election on the ground that his
name did not appear on the list of eligible voters.
The Regional Director , reserving any ruling on
Petitioner's objections to the election, concluded
that a substantial and material issue as to the voting
eligibility of similarly situated employees had been
raised by his investigation of the challenged ballot
of Michael Brittain and recommended that the
Board declare the election of January 31, 1968,
void, set aside said election and the Stipulation for
Certification Upon Consent Election, and direct a
representation hearing before a Hearing Officer of
the Board.
On April 24, 1968, the Employer timely filed ex-
ceptions to the Regional Director's report on objec-
tions to election and challenged ballot.
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
' Excelsior Underwear Inc., 156 NLRB 1236
172 NLRB No. 41
289
powers in connection with this case to a three-
member panel.
The Board has considered the entire record with
respect to the issues raised by the Employer's ex-
ceptions to the Regional Director's report on objec-
tions to election and challenged ballot and makes
the following findings:
A stipulation was executed by the parties on
January 11, 1968, and approved by the Regional
Director on January 17, 1968. The stipulation did
not specifically provide for either the inclusion or
exclusion of casual employees in the bargaining
unit. However, at the time the stipulation was ex-
ecuted, the parties had orally agreed to exclude all
casual employees, including Brittain. At the time,
the oral understanding was not reduced to writing
nor did the parties prepare or append to the stipula-
tion a list of eligible voters. The Employer sub-
mitted a list of employees in conformity with the
Board's Excelsior' decision to the Regional Director
which was served upon the Petitioner and was to
serve as the list of eligible voters at the election.
The list did not contain the names of the Em-
ployer's casual employees.
At the time of the election, Brittain, whose name
was not on the list of eligible employees and who
was 1 of approximately 12 casual employees
similarly situated according to the Regional
Director, sought to vote. The Board agent chal-
lenged Brittain's vote because he was not on the
eligibility list. At the conclusion of the voting, but
prior to the counting of the ballots, the Board agent
sought to resolve Brittain's challenged ballot. The
parties then agreed in writing that Brittain's ballot
would remain challenged, and they signed a state-
ment on the back of Brittain's challenged ballot en-
velope which provided: "Parties agree that this em-
ployee is ineligible to vote." Brittain's ballot is
determinative of the results of the election.
Thereafter, the Petitioner took the position that
while initially consenting to Brittain's ineligibility as
a casual employee, upon later investigation it deter-
mined that he was a qualified voter and, therefore,
he should have been permitted to vote. In support,
Petitioner submitted a statement from Brittain in
which he stated he was a regular employee of the
Employer and submitted records of Brittain's
earnings for the period from September 20, 1967,
to January 30, 1968.
The Employer contended that Brittain is a casual
employee, that he is a high school student and must
have a permit in order to be so employed, that he
has no regular schedule of hours of employment,
that he does not report to work without specific
354-126 O-LT - 73 - pt. 1 - 20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
direction from the Employer, who either calls him
requesting that he report to work at a given time on
the weekend, or notifies him that work is available
when he has, on occasion, stopped at the Em-
ployer's place of business on his way home from
school. The Employer urges that the Petitioner
should not be able to withdraw from the agreement
as to the eligibility of Brittain because the Peti-
tioner presumably was aware of his status, and reaf-
firmed its position as to his ineligibility in writing at
the time of the election. Moreover, the Employer
also submitted copies of timecards of 11 other so-
called casual employees together with the number
of hours they worked on a weekly basis and their
job descriptions. It contended that if Brittain was
eligible to vote, the 11 other employees who have
the same employment and, therefore, eligibility
status as Brittain, should also have been entitled to
vote in the election.
The Regional Director concluded that from an
examination of the timecards submitted by the Em-
ployer and Brittain's earning records submitted by
the Petitioner, that Brittain was substantially and
regularly employed as opposed to casually or tem-
porarily employed, and further, that the timecards
of the 11 other so-called casual employees, who
(like Brittain) were also excluded from the eligibili-
ty list, show that at least some of the 11 were also
substantially and regularly employed.
The Employer excepted to the Regional
Director's failure to sustain the Board agent's chal-
lenge to Brittain's ballot and his failure to certify
that a majority of the ballots had not been cast for
the Petitioner. It also contended that if casual em-
ployees should have been included in the collec-
tive-bargaining unit, then the petition should have
been dismissed initially for lack of an adequate
showing of interest, a contention which we view as
without merit in view of the voting results.
The Board has a "well established policy of
honoring concessions made in the interest of ex-
peditious handling of representation cases," even
though there may be some question of the ultimate
propriety of including certain employees in the unit
were the matter litigated.2 The Board also has a
policy of not including temporary or casual em-
ployees in bargaining units unless the parties agree
to include them.3 Here the parties orally agreed to
exclude casuals, and specifically discussed student
Brittain as a casual, and then, when he alone of the
so-called casuals voted, the parties in effect af-
firmed their agreement in writing, before tally of
the ballots, by their inscription on the challenge en-
velope. In these circumstances and at this postelec-
tion stage of the proceeding, we consider it contra-
ry to good administrative practice to void the elec-
tion and the Stipulation for Certification Upon
Consent Election entered into by the parties, and
now hold a representation hearing on the question
of unit placement of casual employees. Ac-
cordingly, we shall sustain the challenge to Brit-
tain's ballot and refer the case back to the Regional
Director to consider the Petitioner's objections to
the election, which the Regional Director found it
unnecessary to reach pending disposition of the bal-
lot issue.
ORDER
It is hereby ordered that the proceeding be, and
it hereby is, remanded to the Regional Director for
Region 9 so that he may investigate the Petitioner's
objections and thereafter issue his report in regard
thereto.
' Stanley Aviation Corporation, I I2 NLRB 461
' B J Carnev Co, 157 NLRB 1285