Trilco City Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Oct 6, 1976

226 N.L.R.B. 289 (N.L.R.B. 1976)

TRILCO CITY LUMBER
Trilco City Lumber Co., Inc. and Retail Clerks Local
1360, chartered by Retail Clerks International Asso-
ciation, AFL-CIO, Petitioner. Case 4-RC-12083
October 6, 1976
DECISION AND DIRECTION
By CHAIRMAN MURPHY AND MEMBERS JENKINS AND
WALTHER
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 4 of the
National Labor Relations Board, on April 12, 1976,
an election by secret ballot was conducted on April
23, 1976, among the employees in the stipulated unit.
At the conclusion of the election, the parties were
furnished a tally of ballots which showed that, of ap-
proximately 9 eligible voters, 9 cast ballots, of which
4 were for the Petitioner, 3 were against the Peti-
tioner, and 2 were challenged. The challenged ballots
were sufficient in number to affect the results of the
election. Neither party filed objections to the con-
duct of the election or to conduct affecting the re-
sults of the election.
The Regional Director investigated the two chal-
lenged ballots and on May 28, 1976, issued his report
and recommendation on challenged ballots. He rec-
ommended that the challenges to the ballots of Peter
Ortiz and Melvin T. Herder be sustained and that an
appropriate certification of representative issue.
The Employer filed exceptions and a supporting
brief to the Regional Director's findings and recom-
mendation with respect to Herder.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the Regional Director's report and
recommendation on challenged ballots, and the
Employer's exceptions and brief, and hereby adopts
the Regional Director's findings, conclusions, and
recommendations,' as modified below.
Prior to the election, the parties agreed on a list of
eligible voters and entered into a written and signed
agreement as follows:
1 In the absence of exceptions thereto, the Board adopts, pro forma, the
Regional Director's recommendation that the challenge to the ballot of Pe-
ter Ortiz be sustained.
289
Consistent with Norris-Thermador Corporation,
119 NLRB 1301, the undersigned Employer and
Labor Organization agree that the eligibility list
in Case No. 4-RC-12083 has been reviewed,
that all issues as to eligibility to vote have been
resolved, that all employees listed are eligible to
vote in the election and that no employee not on
the list is eligible to vote. It is further agreed that
this list is to be final and binding on the parties.
Melvin T. Herder, one of the challenged voters,
was interviewed for a salesman's position on April 6,
1976, and was told that he could begin work immedi-
ately. However, due to prior commitments, Herder
was not able to start working until April 19. The elec-
tion was held on April 23, with the payroll eligibility
period the week ending April 6. Herder's name was
included on the eligibility list approved by the par-
ties.
The Regional Director recommended that Herder
be found ineligible to vote, notwithstanding the
agreement of the parties, on the ground that it is con-
trary to Board policy to permit voting by an employ-
ee who has not been employed and working on both
the eligibility cutoff and election dates. We do not
agree.
In Norris-Thermador Corporation, 119 NLRB 1301
(1958), the Board said 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 . . . a final determi-
nation of the eligibility issues treated therein unless it
is, in part or in whole, contrary to the Act or estab-
lished Board policy."
The customary basis for determining eligibility to
vote in a Board election is neither a requirement of
the statute nor a policy of the Board. It is a rule of
administrative convenience, though a necessary and
important one, to facilitate determination of eligibili-
ty and to avoid disputes to the extent possible. How-
ever, it may be waived by a specific agreement of the
parties which meets the requirements of Norris-Ther-
mador, supra. We therefore find no basis for not re-
quiring the parties to adhere to their contractual
agreement as to eligibility to vote in the election.2
Accordingly, we find, contrary to the recommenda-
tion of the Regional Director, that Melvin T. Herder
is an eligible voter and we shall direct that his vote be
opened and counted.
2 Capitol Greyhound Lines, 49 NLRB 156, enfd. 140 F.2d 754 (C.A. 6,
1944).
226 NLRB No. 45
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION
It is hereby ordered 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 Direction, open and count the
ballot of Melvin T. Herder, and thereafter prepare
and cause to be served on the parties a revised tally
of ballots, including therein the count of said ballot,
and thereafter issue the appropriate certification.