Bishop-Hansel Ford Sales, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1970

180 N.L.R.B. 987 (N.L.R.B. 1970)

BISHOP-HANSEL FORD SALES, INC. 987
Bishop-Hansel Ford Sales, Inc. and General Truck
Drivers, Warehousemen and Helpers Union, Local
No. 980, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America, Petitioner. Case 20-RC-8813
February 4, 1970
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Pursuant to a stipulation for certification upon
consent election , an election by secret ballot was
conducted on July 8, 1969,' under the direction and
supervision of the Regional Director for Region 20,
within an appropriate unit of the Employer's
employees as agreed to by the parties. Upon
conclusion of the balloting, the parties were
furnished a tally of ballots which showed that, of six
eligible voters, six valid ballots were cast for the
Petitioner. There were no challenged or void ballots.
Thereafter, on July 14, the Employer filed timely
objections to conduct affecting the results of the
election.
In accordance with Section 102.69 of the National
Labor Relations Board Rules and Regulations,
Series 8 , as amended , the Regional Director
investigated the objections and, on September 12,
1969, issued his report on objections in which he
recommended that the objections be overruled in
their entirety and that the Petitioner be certified as
the exclusive bargaining representative of the
employees in the appropriate unit described below.
Thereafter, the Employer filed timely exceptions to
the Regional Director's report on objections, and a
memorandum in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties, we find that the following employees
constitute a unit appropriate for the purposes of
bargaining collectively within the meaning of
Section 9(b) of the Act:
'Unless otherwise indicated , all dates are in 1969.
All parts department employees, including
countermen, stock clerks, delivery men; excluding
all other employees, guards and supervisors as
defined in the Act.
5. The Board has considered the Regional
Director's report on objections, the exceptions and
memorandum , and the entire record in this case,
and hereby makes the following findings:
The Employer contends that the Regional
Director improperly transmitted a list of the names
and addresses of the Employer's employees (herein
called the Excelsior list) to the Petitioner without a
prior "adjudicatory proceeding" authorizing such
transmittal . The Employer argues that, under
N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, the
Board must , on the facts of the particular case,
specifically direct the employer to produce the
Excelsior list in an adjudicatory proceeding and
that, "[a]bsent this direction by the Board, the .. .
[employer is] under no compulsion to furnish the list
because no statute and no validly adopted rule
required it to do so."' The Employer argues that the
parties herein,3 expressly waived their right to an
"adjudicatory proceeding" by executing the
stipulation for certification upon consent election 4
and hence it (the Employer) "was under no
compulsion to furnish the list" and the Regional
Director could not lawfully transmit such list to the
Petitioner. We disagree with the Employer's
rationale.
In the Wyman Gordon case , supra, the Supreme
Court expressly upheld the substantive validity of
the Board's Excelsior' disclosure requirement,
'N L.R.B. v. Wyman-Gordon Co, 394 U S 759 at 766.
'Contrary to the Employer 's assertion , the Regional Director is not a
party to this proceeding ; nor did he become such a party by approving the
Stipulation for Certification upon Consent Election National Labor
Relations Board Rules and Regulations and Statements of Procedure,
Series 8, as amended , Section 102 .62(b) and Section 101.19(a)( 1) and (b)
The Employer relies on the following provisions of the stipulation
agreement as limiting its obligation and the Board 's authority to make
further findings.
I . Said election shall be held in accordance with the National
Labor Relations Act, the Board ' s Rules and Regulations , and the
applicable procedures and policies of the Board.
2. . At a date fixed by the Regional Director, the parties, as
requested, will furnish to the Regional Director , an accurate list of all
eligible voters , together with a list of the employees , if any, specifically
excluded from eligibility
7. The record in this case shall be governed by the appropriate
provisions of the Board 's Rules and Regulations and shall include this
stipulation Hearing and notice thereof , Direction of Election , and the
making of Findings of Fact and Conclusions of Law by the Board prior
to the election are hereby expressly waived.
'Excelsior Underwear Inc , 156 NLRB 1236. In that decision the Board
found that , in order to assure that all eligible voters may have the
opportunity to be informed of the issues in the exercise of their statutory
right to vote , all parties to the election should have access to a list of
voters and their addresses which may be used to communicate with them
The Board , therefore , ruled that in all future representation proceedings,
the employer must submit to the Regional Director , within a specified time
after issuance of the direction of election or approval of the consent
election agreement , a list containing the names and addresses of all eligible
voters; the Regional Director , in turn, shall make this list available to all
parties to the election . The Board further ruled that failure to comply with'
this requirement shall be grounds for setting aside the election whenever
180 NLRB No. 176
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stating that "[t)he objections that the respondent
raises to the requirement of disclosure were clearly
and correctly answered by the Board in its Excelsior
decision."6 Thus, the Court held that where, as in
Wyman-Gordon, the Employer itself is specifically
directed by the Board to submit a list of the names
and addresses of its employees for use by the union
in connection with the election, this direction was
"unquestionably valid."
The Employer's argument in the instant case that
the parties, by executing a consent election
agreement, waived an "adjudicatory proceeding"
pursuant to which the Excelsior list may be validly
directed is without merit because it misconstrues the
purpose and practical effect of those agreements.
Such agreements expedite Board elections by
obviating the need for formal hearings and
directions of election. The parties' waiver of these
statutory requirements, however, is itself statutorily
permitted (Sec. 9(c)(4) of the Act) and does not
make inapplicable other statutory obligations and
Board policies, nor does it denude the representation
proceeding of its adjudicatory nature.' Thus, the
procedure followed in the instant representation
proceeding, beginning with the filing of a petition, is
essentially similar to that followed in
Wyman-Gordon, supra, except that the parties here
were able to stipulate certain facts and hence,
executed a consent election agreement instead of
pursuing the more formal route to a direction of
election. As in Wvman-Gordon, however, the
Employer here was specifically directed by the
Board to furnish the Excelsior list. The fact that this
direction to the instant Employer was made by the
Regional Director in a separate letter accompanying
a copy of the approved stipulation agreement does
not render the direction less valid. To hold otherwise
would be to invite unnecessary litigation in
situations where the parties would otherwise
stipulate to the relevant facts.
We conclude, therefore, that the Regional
Director acted within his authority and in
furtherance of the Board's policy in directing
production of the Excelsior list for transmittal, and
transmitting it, to the Petitioner for use by the latter
in connection with the election.' Accordingly, we
find that the Employer's exceptions raise no
material or substantial issues of fact or law which
would warrant reversal of the Regional Director's
findings and recommendations or require a hearing
in this proceeding.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that General Truck Drivers,
Warehousemen and Helpers Union, Local No. 980,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, has been designated and selected by a
majority of the employees at the Employer's
operation in Santa Rosa, California, in the unit
found appropriate, as their representative for the
purpose of collective bargaining, and that, pursuant
to Section 9(a) of the Act, the said organization is
the exclusive bargaining representative of all such
employees for the purpose of collective bargaining
with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
proper objections are filed The Supreme Court, in Wyman-Gordon , supra,
held that, insofar as the Board purported to promulgate a new rule
applicable to future cases it violated the rule-making processes of the
Administrative Procedures Act.
'Wyman-Gordon Co., supra. at 767
'Formfi Rogers Co v N L R B, 71 LRRM 2456, 2458, 60 LC 16,636,
16,638 ( M D Tenn , June 4, 1969)
'We do not adopt the Regional Director's statement that the Employer,
by submitting the voter eligibility list, as required by Section 2 of the
Stipulation agreement (see fn . 4 supra ), waived its right to object to its
transmittal to the Petitioner