The Leatherwood Co.

National Labor Relations Board - Board Decisions

Jun 11, 1970

183 N.L.R.B. 277 (N.L.R.B. 1970)

THE LEATHERWOOD COMPANY.
The Leatherwood Company and Teamsters Local
No. 175, affiliated with International Brotherhood
of Teamsters,. Chauffeurs , Warehousemen and
Helpers of America, Petitioner. Case 9-RC-8190
June 11, 1970
DECISION, DIRECTION, AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, executed on July 23, 1969, an
election by secret ballot was conducted on August
26 and 27, 1969, under the direction and supervi-
sion of the Regional Director for Region 9, among
the employees in the stipulated unit. At the conclu-
sion of the balloting, the parties were furnished
with a tally of ballots which showed that, of approx-
imately 63 eligible voters, 62 cast valid ballots, of
which 30 were for, and 25 were against , the Peti-
tioner, and 7 were challenged. The challenges were
sufficient in number to affect the results of the elec-
tion . No objections to conduct affecting the elec-
tion were filed.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8 , as amended, the Regional
Director investigated the challenges and, on Janua-
ry 14, 1970, issued and duly served upon the
parties his report thereon, recommending that the
challenges to the ballots cast by employees Buford
H. Bailey, Jr., Ellen Bronner, Mary Lucille
Fletcher, Nola Francis, George Johnson, and Joyce
Wheeler be overruled. With regard to the seventh
challenged ballot, that of employee Leonora
Murphy, the Regional Director found that evidence
concerning her eligibility was conflicting and could
best be resolved by a hearing. The Regional
Director therefore recommended that all chal-
lenged ballots except that of Leonora Murphy be
opened and counted and that a revised tally, includ-
ing therein the count of 6 ballots, be served upon
the parties. If the tally disclosed that Petitioner had
received a majority of the valid votes cast, and that
the unresolved challenged ballot of Leonora
Murphy could not affect the election result, the Re-
gional Director recommended that the Board issue
a certification of representative. However, if the
revised tally disclosed that the election result had
not been determined, and that Murphy's ballot
could affect the results of the election, the Regional
Director recommended that a hearing be held to
' A seventh employee, Leonora Murphy, is also challenged by the Em-
ployer , but she was expressly excluded by the parties from their agreed-
277
resolve the issue of fact raised by her challenged
ballot. Thereafter, the Petitioner filed timely excep-
tions to the Regional Director's report and the Em-
ployer filed a reply.
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.
Upon the entire record in this case the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The Petitioner is a labor organization which
claims to represent certain employees of the Em-
ployer.
3. A question affecting commerce exists con-
cerning representation of employees of the Em-
ployer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The following employees, as stipulated by the
parties, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All employees of the Employer at its places
of business in Beckley, Bluefield, and Kimball,
West Virginia, Bristol, Tennessee, and Nar-
rows, Virginia, excluding all agricultural em-
ployees, office clerical employees, professional
employees, and guards and supervisors as
defined in the Act.
5. The Board has considered the challenges, the
Regional Director's report, the Petitioner's excep-
tions thereto, and the Employer's reply brief, and,
upon the entire record in this case, hereby adopts
the Regional Director's findings and recommenda-
tions, except as modified herein.
Petitioner contends initially that a 7-page eligi-
bility list executed by the parties on July 23, 1969,
did not resolve the eligibility of six employees
(Bailey, Bronner, Fletcher, Francis, Johnson, and
Wheeler), whom it now challenges.' The agree-
ment, which listed expressly all of the above-named
employees except Bailey, reads as follows:
The undersigned parties hereby agree that the
foregoing list consisting of seven pages con-
stitutes all the employees who are eligible to
vote in the election to be conducted in this
case, number 9-RC-8190, and that this list ex-
pressly resolves all issues of eligibility herein
and shall be final and binding upon the parties
signatory hereto, subject to the right of either
party hereto to challenged the vote of Miss
upon eligibility list They could not resolve her status and decided that she
should vote, if at all , subject to challenge
183 NLRB No. 37
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leona [sic] Murphy and subject further to any
additions or corrections in the payroll list to be
furnished of employees for the payroll period
ending July 26, 1969.
As the agreement's terms show, the Employer and
Petitioner agreed that the list could be "subject
further to any additions or corrections in the
payroll list to be furnished of employees for the
payroll period [for eligibility] ending July 26,
1969."
Petitioner now contends that the quoted lan-
guage precludes the agreement from being a final
and binding agreement regarding eligibility, either
in the case of the five above-mentioned employees
whose names were specifically included on the July
23 eligibility list or in the case of employee Bailey,
whose name was later added by the Employer. We
find no merit in this contention except in the case
of Bailey.
In our opinion , the eligibility list executed by the
parties on July 23, 1969, was clearly intended by
the parties to have a final and binding effect in
resolving the eligibility of the employees originally
listed thereon. There was a mutuality of assent re-
garding the status of such employees, which we
hold is not negated simply because the parties also
agreed to permit additions or corrections in the
case of other employees whose names might be
reflected or deleted by a complete payroll list for
the payroll period of eligibility which ended on July
26, 1969. Initially, therefore, in agreement with the
Regional Director, we find that the parties' stipula-
tion that employees Bronner , Fletcher, Francis,
Johnson, and Wheeler are eligible to vote is final
and binding upon them.
Employee Bailey, however, is another case. His
name was added to the July 23 list by the Em-
ployer, after that date, apparently because he ap-
peared on the payroll ending July 26. Although
Petitioner received a revised list from the Employer
some 2 weeks before the election which list in-
cluded Bailey 's name, Petitioner made no objection
to Bailey's inclusion until the preelection con-
ference. The Regional Director apparently con-
cluded that Petitioner's delayed failure to object to
Bailey until the preelection conference precluded
Petitioner from challenging Bailey's vote. In our
view, the intent of the language permitting addi-
tions or corrections to the July 23 eligibility list,
once a complete payroll was available for the
period ending July 26, 1969, is clear-to permit
such additions and corrections only where the
parties are in agreement as to the eligibility status
of the individual being added or deleted. No provi-
sion was made by the parties with regard to the
procedure for resolving any disputed additions or
corrections, and we cannot agree that Petitioner is
foreclosed from challenging Bailey merely because
it waited until the preelection conference to raise a
question as to Bailey's status. Accordingly, we find
that no final and binding agreement was reached
by Petitioner and the Employer at any time with
respect to the eligibility of Bailey.
The exceptions to the Regional Director's recom-
mendation that the ballot of Bailey be overruled
raise substantial and material issues of fact which
can best be resolved by a hearing, as in the case of
Leonora Murphy, about whose eligibility the parties
are also in dispute. However, as there is a possibili-
ty that the five overruled challenges may be deter-
minative of the election, we shall direct that the
ballots of employees Bronner, Fletcher, Francis,
Johnson, and Wheeler be opened and counted. If
the revised tally discloses that the election result
has not been determined, and that the two remain-
ing challenged ballots of employees Bailey and
Murphy would be determinative, we shall order a
hearing on such challenged ballots.
DIRECTION AND ORDER
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purpose of
collective bargaining with the Employer, the Re-
gional Director for Region 9 shall, pursuant to the
National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, and within 10 days from the date of this
Decision, open and count the ballots of Ellen
Bronner, Mary Lucille Fletcher, Nola Francis,
George Johnson, and Joyce Wheeler, the chal-
lenges to which have been overruled herein, and
shall thereafter prepare and cause to be served upon
the parties a revised tally of ballots, including
therein the count of said challenged ballots. If the
tally discloses that the results of the election are
determinative, and the remaining unresolved chal-
lenges will not affect the results of the election, the
Regional Director shall issue the appropriate cer-
tification. However, if the results are not deter-
minative after the aforementioned five ballots have
been opened and counted, and the unresolved chal-
lenges would be determinative, a hearing shall be
held concerning the eligibility of employees Buford
Bailey and Leonora Murphy.
It is hereby ordered that in the event a hearing on
the remaining two challenged ballots becomes
necessary, the instant case is referred to the Re-
gional Director for Region 9 for the purpose of ar-
ranging a hearing before a Hearing Officer to
resolve the issues raised by the challenges to the
THE LEATHERWOOD COMPANY
ballots of employees Buford Bailey and Leonora
Murphy.
IT IS FURTHER ORDERED that the Hearing Officer
who is designated for the purpose of conducting
such hearing shall prepare and cause to be served
on the parties a report containing resolutions of the
credibility of witnesses, findings of fact, and recom-
mendations to the Board as to the disposition of the
279
said issues . Within the time prescribed by the
Board's Rules and Regulations, any party may file
with the Board in Washington, D.C., an original
and seven copies of exceptions thereto. Immediate-
ly upon the filing of such exceptions, the party fil-
ing the same shall file a copy with the Regional
Director . If no exceptions are filed thereto, the
Board will adopt the recommendations of the Hear-
ing Officer.