Tullahoma Concrete Pipe Co., Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1967

168 N.L.R.B. 555 (N.L.R.B. 1967)

TULLAHOMA CONCRETE PIPE CO. 555
Tullahoma Concrete Pipe Co ., Inc. and Teamsters,
Chauffeurs , Helpers and Taxi Cab Drivers, Local
#327, affiliated with the International Brother-
hood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, Petitioner. Case
26-RC-2681
November 28, 1967
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, JENKINS, ZAGORIA, AND
BROWN
Pursuant to a stipulation for certification upon
consent election approved by the Regional Director
for Region 26 on July 17, 1967, an election by
secret ballot was held on July 28, 1967, under the
direction and supervision of the Regional Director
among the employees in the appropriate unit. At the
conclusion of the election, the parties were
furnished with a tally of ballots which showed that
of 43 eligible voters, 42 cast ballots,' of which 21
were for the Teamsters, 21 were for the Mine Wor-
kers, and none were cast against the participating
labor organizations. No objections to the conduct
of the election or to conduct affecting the results of
the election were filed by the parties.
In accordance with the National Labor Relations
Board Rules and Regulations, the Acting Regional
Director conducted an investigation and, on August
8, 1967, issued and duly served on the parties his
report on election, recommending that, in accord
with Section 102.70(d) of the National Labor Rela-
tions Board Rules and Regulations and Statements
of Procedure, Series 8, as amended, a runoff elec-
tion not be held, and that the Board certify the elec-
tion results. Thereafter, the Petitioner filed timely
exceptions to the Acting Regional Director's re-
port, and the Employer filed a response to such ex-
ceptions.
Upon the entire record in this case, the National
Labor Relations Board finds:
1. The Employer is engaged in commerce within
the meaning of the National Labor Relations Act,
as amended, and it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of the employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees employed in the Employer's
Tullahoma, Tennessee, operation, but exclud-
ing office clerical employees, guards, and su-
pervisors as defined in the Act.
5. The Board has considered the Acting Re-
gional Director's report, the Petitioner's exceptions
thereto, and the supporting brief, and hereby adopts
the Acting Regional Director's findings and
recommendations.2
Accordingly, as we have overruled the objec-
tions, and as the tally of ballots shows that neither
the Petitioner nor the Intervenor has 'received a
majority of the valid votes cast, we shall certify the
results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the
valid votes has not been cast for the Teamsters,
Chauffeurs, Helpers and Taxi Cab Drivers, Local
#327, or for the International Union of District 50,
United Mine Workers of America, and that neither
of the said labor organizations is the exclusive
representative of the employees in the unit found
appropriate, within the meaning of Section 9(b) of
the National Labor Relations Act, as amended.
MEMBER BROWN, dissenting:
I dissent because my colleagues' decision
produces a result which, in my opinion, is at vari-
ance with basic statutory purposes.
In the election held in a voting unit of 42 em-
ployees, each competing union received 21 votes.
Notwithstanding that all employees thus demon-
strated a desire for union representation, my col-
leagues dismiss this proceeding by virtue of Section
102.70(d) of the Board's Rules and Regulations.
This section provides, in pertinent respects, that
where an election results in a tie between competing
labor organizations, with no votes cast against
representation, no runoff election is allowed. The
rationale for not conducting a runoff in this situation
is that where there are no votes of a third choice to
redistribute, there is "no basis for expecting that a
run-off will produce results at a variance with the
original vote."3 But this assumption is not neces-
sarily valid. On the contrary, it is just as reasonable
to assume that, if given the opportunity for a runoff
I The Acting Regional Director found that an additional employee was
discharged for cause on the day of the election , before voting.
2 The Petitioner 's exceptions , and request for a runoff election , raise no
material or substantial issues of fact or law which would warrant reversal
of the Acting Regional Director 's findings and recommendations with
respect thereto or require a hearing in this proceeding . Nor does con-
sideration of our dissenting colleague's opinion impel us to depart from the
existing Board rule.
2 United States Rubber Company, 83 NLRB 378, 379; accord, Inter-
Ocean Steamship Company, 69 NLRB 561, 562.
168 NLRB No. 78
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election, at least some of the employees would vote
differently and break the tie rather than be without
a collective-bargaining representative for another
year until a new petition may be filed.
The choice of which assumption to adopt as a
basis for administrative action should, in my
judgment, be determined by reference to declared
Congressional policy of encouraging collective bar-
gaining and protecting the right of employees to
designate a representative for that purpose. It is my
opinion that such statutory considerations impel
adoption of the latter assumption. I would therefore
revise the rule to permit a single runoff election to
break a tie vote when all eligible employees have
voted for representation, and I would direct such
runoff in the present case.
Even though cases presenting this problem do not
arise very often, the incongruity allowed by present
Board practice is no less unjust to the employees in-
volved. The weight of precedent should not be used
as a justification for perpetuating this inequitable
result.