Westlake Plastics Co.

National Labor Relations Board - Board Decisions

Feb 3, 1958

119 N.L.R.B. 1434 (N.L.R.B. 1958)

1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately 21 employees working at Amboy, Washington, in the opera-
tion of the log pond and the short line railroad used to transport the
logs to the Northern Pacific Railroad On this record we find that
this group constitutes an appropriate bargaining unit.
We find that all employees of Harbor Plywood Corporation em-
ployed at its log pond at Amboy, Washington, including those engaged
in operation of the short line railroad, but excluding guards and
supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
We also find that all employees of Stacel Contracting Co, Inc.,
Amboy, Washington, including fallers 7 and truckdrivers, but exclud-
ing guards and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
Also, we find-that all employees of Mt. St. Helens Logging Co.,
Amboy, Washington, including fallers 8 and truekdrivers, but exclud-
ing guards and supervisors as defined _in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
Because the 1957 logging season has now passed, we shall, in ac-
cordance with the Board's usual practice with respect to a seasonal
industry, direct that elections be held at or about the time of the em-
ployment peak of the next logging season on a date to be determined
by the Regional Director among the employees in the appropriate
units who are employed during the payroll period immediately preced-
ing the date of issuance of notice of election by the Regional Director.
[The Board dismissed the petition as to Lewis River Logging Co.,
Pratt Bros., Maurice Anderson, Wisner & Lange, and Ted Wall.]
[Text of Direction of Elections omitted from publication.]
7Including those fallers who in 1957 called themselves "Smith Creek Cutters"
$ Including those fallers who in 1957 called themselves "Bear Creek Cutters"
Westlake Plastics Company and Crystal-X Corporation and
United Rubber, Cork, Linoleum and Plastic Workers of Amer-
ica, AFL-CIO, Petitioner. Case No. 4-RC-3183. February 3,
1958
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election en-
tered into by the parties hereto on November 14, 1956, an election by
secret ballot was conducted on November 29, 1956, under the direction
119 NtRB No. 181.
WESTLAKE PLASTICS COMPANY 1435
and supervision of the Regional Director for the Fourth Region
among the employees of the Employer in an appropriate unit. Upon
the conclusion of the election a tally of ballots was furnished the par-
ties in accordance with the Rules and Regulations of the Board. The
tally of ballots shows that of approximately 61 eligible voters, 57 cast
ballots, of which 28 were for the Petitioner, 27 were against the Peti-
tioner, 1 was challenged, and 1 was void.
Thereafter on December 3, 1957, the Employer timely filed objec-
tions to the conduct of the election, which objections related solely to
the void ballot. On December 28, 1956, the Regional Director issued
his report and recommendations on challenged ballot and objections,
recommending that the Employer's objections be overruled, and that
the challenge be overruled and the challenged ballot be opened and
counted. On February 25, 1957, the Board issued an order directing
hearing, in which it deferred ruling on the objection to the election
and ordered a hearing to resolve the issues raised by the challenge to
the ballot of Ralph E. Ferguson, directing that the Trial Examiner
designated for the purpose of conducting the hearing should prepare
and cause a report to be served on the parties containing resolutions
of the credibility of witnesses, findings of fact, and recommendations
to the Board as to the disposition of the issues. On March 20 and 21,
1957, a hearing was held at Philadelphia, Pennsylvania, before Robert
E. Mullin, Trial Examiner. The Employer, the Petitioner, and the
General Counsel appeared and participated. Full opportunity was
afforded the parties to be heard, to examine, and cross-examine wit-
nesses, to introduce evidence bearing on the issues, and to present oral
argument and briefs. On May 31, 1957, the Trial Examiner issued
his hearing officer's report and recommendations on objections to elec-
tion, in which he recommended that the challenge to the ballot of
Ralph E. Ferguson be sustained. On June 6, the Petitioner timely
filed its exceptions to the hearing officer's report and recommendations
on objections to election. The Board has reviewed the rulings of the
Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's report, attached hereto, the ex-
ceptions and briefs, and, upon the basis of the entire record in this
case, hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the modification noted below.
1. The Trial Examiner found that the Employer and the Petitioner,
had expressly agreed, after a discussion of probationary employees
by name, that probationary employees, including Ralph E. Ferguson,
were to be excluded from eligibility to vote in the election, and that
such agreement, under established Board policy, was final and binding
on the parties thereto, notwithstanding the fact that the agreement
runs counter to the Board's established policy, as expressed in the
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Torch Tip case i "that probationary employees are entitled
to vote in Board elections."
We disagree. In the Norris-Thermador case 2 the Board carefully
reviewed its entire procedure pertaining to the use of eligibility lists
in representation elections . The Board concluded :
... that where the parties enter into a written and signed agree-
ment which expressely provides that the issues of eligibility
resolved therein shall be final and binding upon the parties, the
Board will consider such an agreement, and only such an agree-
ment a final determination of the eligibility issues treated therein,
unless it is, in part or in whole, contrary to the Act or established
Board policy. [Emphasis supplied.]
Accordingly, and contrary to the Trial Examiner, we do not accept
the parties agreement as determinative of the eligibility of Ferguson.
For the Board clearly indicated in its National Torch Tip decision 3
that with respect to the eligibility of probationary employees, it would
apply the rule that all such employees are entitled to vote in Board
elections. It follows, therefore, that the parties' agreement is contrary
to established Board policy and cannot be controlling as to the eligi-
bility status of Ferguson .4 Accordingly, as Ferguson was a probation-
ary employee on the eligibility date and on the date of the election, he
was entitled to vote and the challenge to his ballot is overruled. As
it appears that Ferguson's vote may affect the results of the election,
we shall direct that his ballot be opened and counted with the other
ballots.5
6. The void ballot: In its order directing hearing on the challenged
ballot of Ferguson, the Board deferred ruling on the Employer's
objections to conduct affecting the result of the election. We turn now
to a consideration of this issue. The Employer's single objection in-
volves a ballot which was ruled void by the Regional Director, which
ruling was challenged by the Employer's refusal to sign the tally sheet
and the tally of ballots, although its observers had signed the certificate
of conduct of the election without question.'
The ballot in question contains no marking of any kind in the small
squares under the words "YES" and "NO" or in the rectangle sur-
rounding these squares . However, at the top of the ballot and slightly
' National Torch Tip Company, 107 NLRB 1271.
s Norris-Thermador Corporation , 119 NLRB 1301.
Supra.
* See also 0 . E. Sxekely and Associates, Inc., 117 NLRB 42. We do not dedide
whether in other respects the agreement meets the requirements for a binding and final
determination of eligibility matters. But see Norris-Thermador Corporation, supra.
5 The Employer's motion to vacate the proceedings in the event the challenge to Fergu-
son's ballot is overruled, is denied for the reasons given by the Trial Examiner in foot-
note 2 of his report.
The Regional Director recommended dismissal of the objection on the ground that it
was in the nature of a post-election challenge. We find that it was timely made. See
F. J. Stokes Corporation, 117 NLRB 951.
WESTLAKE PLASTICS COMPANY 1437
left of center, above even the dotted lines surrounding all of the
printed material appearing on the ballot, is written in script, in lower
case letters, the syllable "mo" with a wavy line almost bisecting down-
wards.the third loop of the "m." In its objections the Employer
contends that the markings on the rejected ballot clearly convey the
attitude and sentiments of the particular employee who made the
ballot and that it should be counted. The Employer states that after
the election the particular employee who cast the ballot voluntarily
identified himself, and on information, the Employer believes investi-
gation would reveal that the employee is illiterate and without educa-
tion and is incapable of reading or writing. We find no merit in the
Employer's objection. Even assuming that the marks, though they
be unusual, do not serve to identify the voter, the sense of the mark-
ings is by no means unmistakable. The markings themselves do not
constitute a word of sense. Though the Board has accepted irregularly
marked ballots in the past, it has done so only where the markings
clearly indicated the intent of the voter. Here the meaning of the
markings is not readily recognizable. Accordingly, as constructions
of the markings as a "no union" vote could only rest on conjecture
as to the voter's real intentions, even accepting arguendo, the fact that
he is illiterate and incapable of reading or writing, we find that the
ballot is void' We therefore overrule the objection."
[The Board directed that the Regional Director for the Fourth
Region shall, within 10 days from the date of this direction, open and
count the ballot of Ralph E. Ferguson, and serve upon the parties a
supplemental tally of ballots, and either a certification of representa-
tives or a certification of results of election, as the circumstances may
warrant.]
MEMBER FANNING took no part in the consideration of the above
Decision and Direction.
7 Cf. Jeffries Banknote Co., 116 NLRB 265.
" Member Rodgers, contrary to the holding of the majority, is of the opinion that the
ballot in question clearly indicates the intent of the voter. Accordingly, he would count
the ballot as a vote against the Petitioner. Crucible Steel Company of America, 117
NLEB 1616.
HEARING OFFICER'S REPORT AND RECOMMENDATIONS ON
OBJECTIONS TO ELECTION
On November 29, 1956, pursuant to a stipulation for certification upon consent
election entered into by the parties hereto, an election by secret ballot was conducted
in the above-entitled matter under the direction and supervision of the Regional!
Director for the Fourth Region, Philadelphia, Pennsylvania.' Thereafter, on Decem-
ber 3, 1956, the Employer filed timely objections to the election, alleging inter alia,
that the challenge to the ballot of Ralph E. Ferguson should be sustained. Follow-
ing an investigation, the Regional Director, in his report on objections, dated Decem-
' The tally of ballots, duly issued and served upon the parties , shows that of approai-
.mately 61 eligible voters, 57 cast ballots, 28 of which-were for the Petitioner, 27 were
against, 1 ballot was challenged and 1 was void.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 28, 1956, recommended that the foregoing and all other objections raised by the
Employer be dismissed. Upon exceptions to this report filed by the Employer,
as well as a brief in support thereof, the Board, on February 25, 1957, issued an
order directing that a hearing be held before a Trial Examiner to resolve the issues
raised by the challenge to the ballot of Ralph E. Ferguson.
Pursuant to notice, and in conformity with the aforesaid order, a hearing was
held at Philadelphia, Pennsylvania, on March 20 to 21, 1957, before the duly desig-
nated Trial Examiner acting as hearing officer. The General Counsel, the Employer,
and the Petitioner were represented by attorneys. All parties were afforded oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce relevant
evidence bearing on the issues. At the close of the Union's case, upon motion of
the Employer, the hearing officer recessed the hearing to await a determination by
the Board or the General Counsel on the request of the Employer that it be per-
mitted to call an employee of the Regional Office as a witness. Thereafter, both
parties filed petitions for leave to call employee of the Board or General Counsel
as witness. On April 9, the General Counsel denied the request of the Union that
Field Examiner Thomas J. Walsh be permitted to appear and testify, and on April 15,
the General Counsel denied a similar request that the Employer made as to Field
Examiner Chester S. Montgomery.
Immediately prior to the recess the parties had stated, on the record, that in the
event the request to call any Board employee as a witness was denied they would
have nothing further to submit. At the same time the hearing officer ruled that in
the event any such application by the Employer, or Petitioner, or both, was denied,
the hearing would be closed. Accordingly, on April 16, 1957, and in view of the
aforesaid disposition of the petitions by the General Counsel, the Trial Examiner
entered an order closing the hearing as of that date. On May 6, 1957, the Employer
and the Union submitted able and comprehensive briefs which have been fully con-
sidered by the Trial Examiner?
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses,.I make the following:
FINDINGS OF FACT
A. Introduction
On November 14, 1957, the Employer and the Petitioner executed a stipulation
for certification upon consent election. The day before, during a conference held
at the Regional Office, the parties agreed on using the pay period ending November
4, as' the one for determining eligibility to vote in the forthcoming representation
election. Ralph E. Ferguson 3 was on the payroll on that date, having been hired
October 23, 1957. At the election on November 29, however, Thomas J. Walsh,
the Board agent in charge, challenged Ferguson's vote because his name was not
on the eligibility list. The Employer contends that this challenge should be sustained
because at the time of the conference on November 13, the parties had agreed that
since -Ferguson was a probationary employee his name should be excluded from
the eligibility roster. The Petitioner, on the other hand, denies that any such agree-
ment was made and urges that since Ferguson was an employee on the eligibility
date his ballot should be opened and counted.
B. The evidence as to the events in question; conclusions with respect thereto
At the preelection conference on November 13, the Employer was represented
by Mr. Archer, its counsel, E. B. Westlake, Jr., president of both companies here
In its brief, the Employer includes a motion to vacate the stipulation for certification
upon consent election, the election, and all subsequent proceedings, in the event the
hearing officer concludes that the vote of Ferguson should be counted. Several grounds
are urged in support of this motion. All, however, are based upon the assumption that
the stipulation was a mere agreement between company and union, that the Board was
not a party thereto, and that if the Employer's view does not prevail there could have
been no meeting of the minds. Totally ignored in this argument is the fact that, by
its terms, the stipulation was entered into subject to the approval of the Regional Director
and that once that approval was given, all further procedures were to be in conformity
with the Board's Rules and Regulations. It is in accordance with the latter that the
election and all subsequent proceedings have been conducted. The Employer's motion,
therefore, is totally lacking in merit. It should be, and hereby is, denied.
' The name "Ralph Lee Ferguson" also appears on some of the exhibits and in por-
tions of the transcript. This refers to the same employee, the correct name being
Ralph E. Ferguson.
WESTLAKE PLASTICS COMPANY 1439
involved, D. David Dundore, plant manager of Westlake Plastics, and Robert W.
Cockrill, plant manager of Crystal-X. The Union was represented by Michael G.
Sabol and Gene Tormey, both international representatives, and Lawrence A. Johnson
and John F. Blisard, Sr., two employees of the plants here involved. Field Examiner
Chester S. Montgomery represented the Regional Office at this meeting. With the
exception of Mr. Montgomery, all of the foregoing appeared as witnesses and testified
at the hearing before the Trial Examiner.
According to the witnesses for the Employer the following events occurred during
this conference:
After various matters, such as the appropriate unit and an eligibility date, had been
agreed upon, discussion turned to a consideration of which employees should be on
the eligibility list. Mr. Westlake brought to the meeting (1) the plant payrolls; (2)
several photostatic copies of the foregoing; and (3) copies of a proposed list of
eligible voters. At the outset of the meeting the union representatives were supplied
with a copy of the latter and the other copies were used by the Employer's group as
well as by Mr. Montgomery in discussing the various names on this list. Agreement
was reached as to the supervisory status of several individuals listed thereon. As
a result, the two plant managers were eliminated and a line was drawn through each
of their names. The same was done with the names of two other employees, Robert
Cater and Ernest Kiesel, who had been terminated a few days after November 4.
At this point, Mr. Archer asked Dundore whether there were any new employees
whose names were not on the proposed eligibility list. The latter replied in the
affirmative and named Ferguson and two others, Jerome Davis and Joseph Murphy.
Dundore then wrote these names in pencil on one copy of the list. (In evidence as
Board's Exhibit No. 2.) Archer added these same names, also in pencil, to the
copy which he had. (In evidence as Employer's Exhibit No. 3-C.) Thereafter
a discussion arose as to the status of these employees. Both Davis and Murphy had
been hired subsequent to November 4 and Ferguson on October 23. Mr. Westlake
took the position that all three were still probationary employees and not entitled to
vote. Aster some further discussion of the matter the parties agreed that none of
the three should remain on the eligibility list. Mr. Archer then suggested at least
three copies of the list should be conformed in accordance with this agreement.
Upon making this suggestion, he borrowed a ballpoint pen from one of the union
representatives 4 and crossed out on each of the 3 copies the names of Ferguson,
Davis, and Murphy, as well as the names of the 2 employees who had been terminated 5
and those of the 2 plant managers.6 After he had done this, Sabol and Westlake
examined the copies and then affixed their signatures to each page of the 4 pages
that made up each of the 3 copies. One copy was then given to Mr. Sabol, another
was given to Mr. Montgomery (Board's Exhibit No. 2), and the third was retained
by Mr. Archer (Employer's Exhibit No. 3). The latter then stated that because
of the various markings in pencil and ink on these copies he would have the list
retyped and would supply each of the parties with a copy. Archer also advised the
conferees that because Mr. Rappeport, general counsel for the Employer, might have
some objection from a tax or corporate standpoint to the unit agreed upon, he wanted
an opportunity to confer with the latter that afternoon. Mr. Archer further stated
that if Mr. Rappeport voiced no objection, he (Archer) would sign the election
agreement the next day. In accordance with this commitment, on November 14,
Archer executed the stipulation for certification upon consent election. He also
supplied to the Regional Office the retyped eligibility list, along with a letter addressed
to Field Examiner Montgomery which read, in relevant part, as follows:
I am . . . handing you herewith a revised list of employees of the two
corporations eligible to participate in the election, as determined by the payroll
list of November 4th. You will wish to compare this clean copy with the
material initialed by the Union and by the Companies and presently in your
hands.
As agreed, I have communicated with Mr. Sabol's office to the above effect, and
I am transmitting to him a duplicate copy of the employee list with copy of
this letter.
The foregoing letter, along with the original of the eligibility list to which it refers,
appears in the record of this proceeding as Board's Exhibit No. 3. Mr. Sabol
* Mr. Sabol testified that he did not distinctly recall having loaned his pen to the
Employer's counsel but conceded that he may have done so.
Cater and Itiesel.
e Dundore and Cockrill.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conceded that shortly after November 14 he received a copy of this exhibit from
Mr. Archer.
All four of the union witnesses denied that at this conference there was any
discussion on the subject of probationary employees or any mention of Ferguson.
Mr. Sabot further testified that when he signed Board's Exhibit No. 2 and Employer's
Exhibit No. 3-C the names of Ferguson, Davis, and Murphy were not on those
papers. Mr. Tormey testified to the same effect. Moreover, the union representatives
denied that they were given any copies of this list. According to Sabot, he signed
only the two complete sets of this roster which are in the record (Board's Exhibit
No. 2 and Employer's Exhibit No. 3), and handed them across the table to the
company representatives. He conceded that one set was handed to Field Examiner
Montgomery within approximately 5 minutes thereafter. He further conceded that
this document remained in the possession of the Regional Office from that time
until it was produced by the General Counsel at the instant hearing and received
in evidence as Board's Exhibit No. 2. This concession is most significant for on
that exhibit Ferguson's name, as well as that of Davis and Murphy, appear in pencil
and have been inked out in precisely the fashion described in the testimony of the
Employer's witnesses. Moreover, the Employer's copy of this document, received in
evidence at the hearing as Employer's Exhibit No. 3-C, is an exact duplicate and
has the same three names, written in and crossed over in the same manner.
Sabot testified at the hearing that after he signed the lists and handed them across
the table, "there was people on the other side of the table were doing markings."
This would imply that in the few minutes that elapsed before Board's Exhibit No.
2 was handed to Mr. Montgomery, someone on the Employer's side of the table
added the three names in pencil and then crossed them over in ink. Significantly,
Mr. Tormey testified that he saw none of this activity which Sabot described in the
passage from the transcript quoted above. An examination of Board's Exhibit No.
2 shows no evidence of any such bold and hasty alteration as would have been
necessary , if one is to accept Mr. Sabot 's inference . His suggestion that imme-
diately after he had signed these documents the Employer's agents, with amazing
prescience as to the importance of Ferguson's vote in an election still 2 weeks away,
should have immediately set out to alter the documents which Sabot had signed
and to do so before his very eyes is, in the opinion of the Trial Examiner, too far
fetched to merit any serious consideration. The General Counsel's representa-
tive made no effort to refute the Employer's claim that Board's Exhibit No. 2 was
unchanged between the moment when Westlake and Sabot signed it and the time
it was offered in evidence. As noted earlier, the General Counsel denied a request
of the Employer that Field Examiner Montgomery be permitted to testify. Yet
the latter was the only disinterested party at the conference in question and he was
the only potential witness who did not testify. Under these circumstances, and on
the record here, it is my conclusion that Board's Exhibit No. 2 was not changed
or altered by the Employer after Sabot and Westlake signed it, that it was almost
immediately thereafter given to Mr. Montgomery, that it remained unchanged while
in the possession of the Regional Office, and that it was received in evidence ,at the
hearing just as it appeared immediately after it had been when signed by Westlake
and Sabot. This conclusion, of course, very substantially corroborates the testimony
of both Archer and Westlake. For this reason, and the further fact that their
demeanor as witnesses , particularly during a vigorous and extended cross -examina-
tion, was convincing evidence of their credibility, I am convinced and find that their
testimony is more accurate and reliable than that of the union representatives as to
the events which took place at the conference on November 13. Accordingly, I
find, on the basis of the foregoing, that the matter of probationary employees was
discussed at this meeting and that Ferguson, Davis, and Murphy, by agreement of
the Employer and the Petitioner, were taken off the list of eligible voters because
they were probationary employees.
According to Mr. Sabot, he first heard of Ferguson at a union meeting held on
November 25. He did not, however, communicate with either the Board or the
Employer as to Ferguson 's not being on the eligibility roster until the morning of
the election. Shortly before the polls opened on November 29, a conversation
tookplace at the scene of the election in which Sabot, Westlake, and Field Examiner
Walsh participated. According to Sabot, when he arrived at the polling place the
field examiner gave him Board's Exhibit No. 3 to examine and in so doing he
discovered that Ferguson was not on the list . In response to his question as to the
reason for this, Mr. Walsh replied by suggesting that he ask Westlake. When Sabot
did so, the latter stated that he would check and then left the area for a few minutes.
Sabot testified that when Westlake returned he stated that Ferguson was not on the
roster because he was a probationary employee. At this point, Field Examiner
WESTLAKE PLASTICS COMPANY 1441
Walsh stated that although Ferguson would not be prohibited from voting, he
(Walsh) would challenge his ballot since the employee's name was not on the list.
Westlake's testimony as to the foregoing incident did not differ in any substantial
or material manner from that of Sabol. He conceded that he had telephoned Mr.
Archer to check on Ferguson's eligibility and that after returning to the polling
place had raised no further issue as to the matter because the Board agent in charge
stated that he would challenge Ferguson's ballot.?
One further factual issue remains to be resolved. Westlake testified that the pro-
bationary period for new employees was 30 workdays. He further testified that
new employees were informed of this policy at the time of hiring, but that no other
notice, either orally or in writing, is ever given. He conceded that the only written
evidence of such a rule in the plant appears in Petitioner's Exhibit No. 1. This last
is a document dated July 27, 1956, and is entitled "Basis for Settlement of Differ-
ences." There appears in this only one line on the question in issue here and that
reads as follows:
4. Employment probationary period of 30 days.
The Union contends that the only possible construction of the above is 30 calendar
days rather than 30 workdays as Westlake testified. It is certainly true that the
Union's interpretation of this sentence is reasonable. However, there is nothing
else in the document in which this line appears that supports the Union's interpreta-
tion, nor anything else in the record, for that matter. At best the passage is
ambiguous, for by itself, it may also be read as support for the Employer's position.
Consequently, in view of this fact and Westlake's uncontradicted testimony that
the company policy was to require a probationary period of 30 working days, I
accept the latter and so find. Since Ferguson had been in the company employ for
less than 30 working days on November 29, he was still a probationary employee
at the time of the election.
It is true, as the Union contends, that the test usually applied by the Board in
determining eligibility is whether the voter was employed in the appropriate unit
during the eligibility period and on the date of the election, unless that individual
was absent for one of the reasons set out in the Direction of Election, or election
agreement. Barry Controls, Incorporated, 113 NLRB 26, 27. It is uncontradicted
that Ferguson satisfied this test and, further, that his status as a probationary
employee did not, of itself, affect his right to vote. National Torch Tip Company,
107 NLRB 1271, 1272-1273; Sheffield Corporation, 108 NLRB 349, 352.
On the other hand, the Board has a "well established policy of honoring conces-
sions made in the interest of expeditious handling of representation cases in gen-
eral." Stanley Aviation Corporation, 112 NLRB 461, 462-463 (citing New York
Shipping Association and its Members, 109 NLRB 1075, 1077-1078). In accord-
ance with this policy the Board will not permit, subsequent to an election , the litiga-
tion of eligibility matters which were settled before the election by stipulation or
agreement of the parties. Stanley Aviation Corporation, supra; Consolidated Indus-
tries, Inc., 116 NLRB 1204, 1206-1207; Gulf States Asphalt Company, 115 NLRB
100, 102; Texas Prudential Insurance Company, 115 NLRB 1383, 1385. Of course,
the Board will not honor a stipulation that is contrary to the Act, F. M. Reeves &
Sons, Inc., 114 NLRB 1243, footnote 2 (Board rejected an agreement of the parties
to include individuals who were supervisors within the unit ), nor will it honor a
stipulation which is contrary to Board policy. Yale and Towne Manufacturing Com-
pany, 112 NLRB 1268, 1270 (Board rejected agreement of parties to include time-
keepers in an office clerical unit because it found the timekeepers to be plant clerical
employees whom the Board customarily included in a production and maintenance
unit ). The issue here is similar in many respects to that presented in Consolidated
Industries, Inc., supra. In the latter case, at a preelection conference the parties
had agreed on a list of eligible voters. At the election the ballot of an employee
who satisfied all the requirements for eligibility but whose name was not on the list
was challenged. In sustaining the challenge, the Board restated its policy of honor-
ing preelection concessions of the parties. It also stated that "The application of
this policy is particularly warranted where, as here, during the 5-week period which
7 The Union attacks Westlake's credibility on the ground that at one point he testi-
fied that there were two union representatives at the polling place that morning. Although
Westlake testified to this effect at one point, he later qualified this statement with the re-
mark that he was not "positive" as to whether there was any one With Mr. Sabol. The latter
testified that he was the only union representative present that day and I am satisfied
that in this instance his was the more accurate recollection.
476321-58-vol. 119-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intervened between the date. of the eligibility agreement and the election, no objec-
tion was made by either of the parties to the eligibility list." Ibid., at 1207. In this
latter respect the instant case can be distinguished, for here the Union did, on the
very eve of the election, question the omission of Ferguson's name from the eligibility
list. On the other hand, in Consolidated, as the Board pointed out, the eligibility
of the specific employee in question was not discussed at the preelection conference
(Ibid., at 1207, footnote 5). In the present case, the status of Ferguson and the
other probationary employees had been discussed and the parties had agreed on their
exclusion from the eligibility list.8 Here, presumably, in view of Mr. Sabol's efforts
on the morning of the election to have Ferguson's name placed on the list, there
came a time when the Union wanted to amend the earlier agreement. The question
thus becomes one of whether such a last minute, unilateral, change should be per-
mitted, or whether the better policy would be to hold the parties to the agreement
made at the preelection conference. The latter appears the more equitable, in view
of the fact that in those cases where the parties agreed on an eligibility roster as be-
ing the complete list of eligible voters and subsequently an employee was found to
have been omitted through mistake or inadvertence, the Board, for the stated reason
that it preferred to honor the stipulation of the parties, adhered to the list in the
original agreement and sustained a challenge to the ballot of such an employee. Gulf
States Asphalt Company, 115 NLRB 100, 102; Texas Prudential Insurance Company,
115 NLRB 1383, 1385. If this is the policy as to the finality of an agreement on
the completeness of an eligibility list drawn up by the parties, it would seem to
follow that where the parties at a preelection conference agree on the specific ex-
clusion of an employee, such an agreement would be equally final and binding.
Moreover, although in the normal situation the Board follows a practice of allow-
ing probationary employees to vote (National Torch Tip Company, and cases cited,
supra), it would appear that such a practice will not prevail over the Board's fre-
quently stated policy of honoring an agreement such as that here involved, which
was likewise made in the interest of expeditiously processing an election.
[Recommendations omitted from publication.]
8 In a more recent case, 0. E. Szekely and Associates, Inc., 117 NLRB 42, the Board
pointed out that the Consolidated Industries decision should not be construed to mean
that the mere preparation and checking of an eligibility list prior to an election precludes
the possibility of challenges at the election. In the Szekely case the Board concluded
that the eligibility list originally prepared by the parties should not be controlling as
to the eligibility of employees voting in the election regardless of whether the names of
these employees appeared on the list or had been omitted therefrom. That case is distin-
guishable from the present, however, for in Szekely the Board considered it significant
that, at the time the eligibility roster in question was prepared, there had been no
"specific agreement as to the affected individuals, i. e., a discussion by name of the
affected persons, with an agreement reached as to their eligibility" (Ibid.). This con-
trasts with the present situation, where, as found above, Ferguson's circumstances had
been discussed at the preelection conference and, as a result, his name was deleted from
the aforesaid roster.
Flight Enterprises, Inc. and International Association of Ma-
chinists , AFL-CIO, Petitioner. Case No. 11-RC-939. Febru-
ary 3, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board on May 23, 1957,1 an election was conducted on July 10, 1957,
under the direction and supervision of the Regional Director for the
i Not reported in printed volumes of Board's Decisions and Orders.
119 NLRB No. 182.