Gala Food Processing

National Labor Relations Board - Board Decisions

Apr 27, 1993

310 N.L.R.B. 1193 (N.L.R.B. 1993)

1189
310 NLRB No. 203
GALA FOOD PROCESSING
1 All dates are in 1992.
2 The stipulated unit is: ‘‘All full-time and regular part-time em-
ployees, including call-in employees, and warehouse assistants, em-
ployed by the Employer at its facility located at 1475 Hill-Brady
Road, Battle Creek, Michigan; but excluding all office clerical em-
ployees, professional employees, guards and supervisors as defined
in the Act.’’ We have corrected the Acting Regional Director’s inad-
vertent omission of a comma after ‘‘including call-in employees.’’
3 The stipulation reads in full:
All full-time and regular part-time employees, including call-in
employees, and warehouse assistants, employed by the Employer
at its facility located at 1475 Hill-Brady Road, Battle Creek,
Michigan; but excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in the Act.
4 We rely on this conduct as extrinsic evidence of intent. We do
not imply that the list of names supplied by the Employer was a
final and binding eligibility list within the meaning of Norris-
Thermador Corp., 119 NLRB 1301 (1958).
Gala Food Processing, Inc. and American Federa-
tion of Grain Millers, AFL–CIO–CLC, Peti-
tioner. Case 7–RC–19844
April 27, 1993
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held July 28, 1992,1 and the Acting Re-
gional Director’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement.2 The tally of ballots shows
18 for and 18 against the Petitioner, with 2 challenged
ballots.
The Board has reviewed the record in light of the
exceptions and brief, and adopts the Acting Regional
Director’s findings, conclusions, and recommendations.
The Acting Regional Director found that the parties
intended to include all call-in employees in the stipu-
lated bargaining unit. Accordingly, the Acting Re-
gional Director recommended that the Employer’s
challenges to the ballots of two call-in employees be
overruled. The Employer contends that it intended to
include only those call-in employees who were also
full-time or regular part-time employees, and that be-
cause the stipulation is ambiguous the Board must
apply a community-of-interest analysis and sustain the
Employer’s challenges. We agree with the Acting Re-
gional Director, for the reasons detailed below.
It is settled Board policy to accept stipulations from
parties as to bargaining unit composition and voter eli-
gibility unless the stipulations contravene statutory pro-
visions of the Act or established Board policy. Tribune
Co., 190 NLRB 398 (1971). If the objective intent of
the parties is expressed in the stipulation in clear and
unambiguous terms, the Board holds the parties to
their agreement. Id. ‘‘If the stipulation is ambiguous,
however, as in the case of any contract, the primary
question is determining what the parties meant. Thus,
the Board has authority to interpret the agreement ac-
cording to what it finds to have been the intent of the
parties.’’ NLRB v. Barker Steel Co., 800 F.2d 284, 286
(1st Cir. 1986) (citations and internal quotations omit-
ted). And, in interpreting ambiguous contractual lan-
guage, it is, of course, well established that resort to
extrinsic evidence is appropriate. Electrical Workers
IBEW Local 1395 v. NLRB, 797 F.2d 1027, 1036
(D.C. Cir. 1986). If the parties’ intent remains unclear,
reliance may be placed on community-of-interest prin-
ciples. NLRB v. Boston Beef Co., 652 F.2d 223, 226
(1st Cir. 1981). Subjective intent is not a proper con-
sideration. White Cloud Products, 214 NLRB 516, 517
(1974).
Here, the stipulation is subject to at least two inter-
pretations.3 By specifying ‘‘call-in employees’’ as
being ‘‘includ[ed],’’ the parties may have intended that
all such employees be part of the unit without quali-
fication. The Employer, however, contends that the ref-
erence to call-in employees is qualified by the term
‘‘full-time and regular part-time employees’’ and that
call-in employees are eligible only if they also qualify
as full-time or regular part-time employees. Under all
the circumstances, we find that the parties’ stipulation
itself is unclear. Accordingly, we properly look to ex-
trinsic evidence to determine the parties’ intent.
The Petitioner initially sought a unit of all full-time
and regular part-time employees, including warehouse
assistants. The Employer, communicating exclusively
through the Board agent, proposed the inclusion of
call-in employees. The Petitioner requested their
names. The Employer replied, without qualification,
that the last 12 names on a list of active hourly em-
ployees that it had previously provided to the Regional
Office constituted the Employer’s call-in employees.
The names of the two employees eventually chal-
lenged, Michael Bailey and Luther Hale, were among
the names identified by the Employer. Thereafter, the
Employer and Petitioner signed the Stipulated Election
Agreement.
In light of the foregoing, we agree with the Acting
Regional Director that the objective intent of the par-
ties at the time they executed the Stipulated Election
Agreement was to include all call-in employees in the
bargaining unit. In reaching this conclusion, we par-
ticularly rely on the Employer’s furnishing the Board
agent with the names of ostensibly all its call-in em-
ployees without qualification after proposing the addi-
tion of this classification to the petitioned-for unit.4
Significantly, the Employer furnished the names of the
call-in employees before the stipulation was reached.
This extrinsic evidence resolves the ambiguity in the
stipulation and strongly supports the conclusion that
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 We also note that the Employer’s conduct subsequent to the exe-
cution of the stipulation was consistent with our interpretation of the
parties’ intent. Thus, the Employer’s Excelsior list included the
names of all the call-in employees the Employer had previously
identified. At the preelection conference, the Employer stated its in-
tention to challenge one call-in employee on the apparent ground
that he was no longer employed. At no time prior to the election
did the Employer express reservations about the eligibility of any
other call-in employee.
6 That the stipulation was reached through discussions with a
Board agent rather than directly by the parties themselves does not,
as suggested by the dissent, make a difference. Binding agreements
are often made through the intermediacy of third parties, whether the
third party is or is not an agent of one of the principals.
7 Unit inclusion and voter eligibility are, of course, inseparable.
Post Houses, Inc., 161 NLRB 1159, 1172 (1966).
8 At the preelection conference the Employer stated its intention to
challenge one call-in employee who had not responded to repeated
call-ins. The intended challenge to this employee, in contrast to the
challenges to Bailey and Hale, was on grounds other than that cov-
ered by the stipulation and would not, therefore, be governed by the
stipulation. Because the parties agreed to exclude that employee, the
Employer did not have to make the challenge during the election.
the parties intended that all, not some, of the call-in
employees be included in the unit.5
More specifically, and in response to our dissenting
colleague, we find that the stipulation on its face clear-
ly and unambiguously includes the position of call-in
employee in the unit. What is ambiguous on the face
of the stipulation is whether the parties intended to in-
clude all call-in employees, regardless of the regularity
of their work, or to include only those call-in employ-
ees who were regular part-time employees. At times
the Board’s inquiry into the meaning of a stipulation
ends at this point, i.e., on finding the stipulation to be
facially ambiguous, and the Board proceeds to apply a
community-of-interest standard and an eligibility for-
mula. Here, however, we have found extrinsic, objec-
tive evidence that the parties intended to include all
call-in employees.6 As indicated above, ‘‘In stipulated
unit cases, the Board’s function is to ascertain the par-
ties’ intent.’’ Tribune Co., 190 NLRB 398 (1971). Ac-
cordingly, we find that the stipulation, as clarified by
the extrinsic evidence, is not ambiguous and includes
all call-in employees.7
We do not disagree with the cases cited in the dis-
sent, but we do disagree with their relevancy. Absent
a Norris-Thermador eligibility list, parties are free to
challenge individual voters provided that the challenge
does not contravene the stipulation. A stipulation is,
however, conclusive regarding challenges that are con-
trary to the stipulation. In this case the Employer chal-
lenged the ballots of Michael Bailey and Luther Hale
solely on the grounds that they did not work a suffi-
cient number of hours to be considered as regular part-
time employees. We have, however, found that the
parties intended by their stipulation to include all call-
in employees regardless of the regularity of their em-
ployment. Thus, we find that the stipulation is conclu-
sive as to the eligibility of Bailey and Hale.8 We also
disagree with our colleague that we have improperly
made an adverse credibility resolution. That the Em-
ployer’s attorney may have intended to include only
regular call-in employees does not resolve the issue.
Such subjective intent is irrelevant. White Cloud Prod-
ucts, supra at 517.
Accordingly, we agree with the Acting Regional Di-
rector that the challenges to the ballots of Bailey and
Hale should be overruled and a revised tally of ballots
should be prepared.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 7, within 14 days from the date of this decision,
open and count the ballots of Michael Bailey and Lu-
ther Hale, and thereafter prepare and cause to be
served on the parties a revised tally of ballots, on
which basis the Regional Director shall issue the ap-
propriate certification.
MEMBER OVIATT, dissenting.
My colleagues adopt the Acting Regional Director’s
findings, conclusions, and recommendations. I cannot
agree.
The issue in this case concerns the challenged bal-
lots of Michael Bailey and Luther Hale, who were
‘‘call-in’’ employees who were challenged on the
ground that they did not work a sufficient average
number of hours to be included in the unit.
During the 2-week period prior to the scheduled
preelection hearing in this case, the parties had several
conversations with the Board agent regarding the pos-
sibility of a Stipulated Election Agreement. All such
conversations were carried on through the Board agent;
there was no direct contact between representatives of
the Employer and the Petitioner. During this time, the
Employer’s representative proposed and apparently the
Union agreed, to inclusion of the classification of
‘‘call-in’’ employees, and the Employer agreed to the
Union’s proposal to include the classification of
‘‘warehouse assistant.’’ At no time during any of these
conversations was the specific eligibility of any Gala
employee discussed, other than references to the al-
leged supervisory status of Carter, Ernsberger, and
Winans.
The Acting Regional Director concluded that ‘‘there
was a clear meeting of the minds’’ on the issue that
all ‘‘call-in’’ employees including Bailey and Hale
were eligible to vote, notwithstanding the fact that no
specific eligibility formula had been agreed to, and the
parties had not executed a stipulated voter eligibility
list. The Employer in its exceptions contends that the
Acting Regional Director’s position therefore is that
the election agreement’s unit description, together with
the submission of an Excelsior list, bars a challenge to
the eligibility of any individual who works in a classi-
fication included within the unit and whose name ap-
1191GALA FOOD PROCESSING
1 174 NLRB 1179 (1969).
pears on the Excelsior list. I agree that that is the ef-
fect of the Acting Regional Director’s reasoning, and
I also agree that it is erroneous.
My colleagues, although adopting all the Acting Re-
gional Director’s findings, conclude, unlike the Acting
Regional Director, that the parties’ stipulation itself is
unclear. I would read the stipulation as encompassing
the classifications of call-in employees and warehouse
assistants, subject to qualification by the term ‘‘full-
time and regular part-time’’ employees, in accord with
the Board’s normal practice, in the absence of a spe-
cific eligibility list meeting the standards established in
Norris-Thermador Corp., 119 NLRB 1301 (1958).
That case sets forth the Board’s policy regarding at-
tempts by the parties to definitively resolve issues of
voter eligibility:
[W]here the parties enter into a written and signed
agreement which expressly provides that issues of
eligibility resolved therein shall be final and bind-
ing upon the parties, the Board will consider such
an agreement, and only such an agreement, a final
determination of the eligibility issues treated
therein . . . . [Id. at 1301–1302; emphasis
added.]
Here of course, it is undisputed that there is no such
agreement. Indeed, it also appears undisputed that there
was never any discussion regarding the eligibility of
either one of the employees whose ballots were chal-
lenged. On those grounds, therefore, I would either re-
solve the challenged ballots now according to the
Board’s normal community-of-interest standards, or re-
mand the case for a hearing on that issue.
Treating the parties’ stipulation as ambiguous, how-
ever, does not change that result: i.e., the challenges
must still be resolved by application of the Board’s
normal community-of-interest standards.
I am perplexed by my colleagues’ conclusion that
the ‘‘intent of the Parties at the time they executed the
stipulated election agreement was to include all call-in
employees,’’ irrespective of whether they would be eli-
gible to vote. According to the affidavit submitted by
the Employer’s attorney, the only ‘‘meeting of the
minds’’ which occurred between the Employer and the
Union is embodied in the Stipulated Election Agree-
ment itself, since the attorney at no time had any con-
versation with any representative of the Union prior to
the day of the election. It was also the Employer’s in-
tent that the phrase ‘‘including call-in employees’’
have ‘‘express connection to the phrase all full-time
and regular part-time employees.’’ Thus, my col-
leagues’ conclusion that it was the intent of the parties
to include all call-in employees amounts in effect to an
adverse credibility resolution—but one that cannot
properly be made without benefit of a hearing under
Section 11396.2 of the Board’s own Casehandling
Manual. See NLRB v. Claxton Mfg. Co., 613 F.2d
1364 (5th Cir. 1980). Further, their relying ‘‘particu-
larly’’ on the Employer’s furnishing the Board agent
with the names of employees after proposal of the stip-
ulation, as supporting the conclusion that the parties
intended that all call-in employees be included in the
unit is inappropriate. First, the Employer originally fur-
nished to the Region, at the Board agent’s request, a
list of all hourly employees, so that the Region might
examine the Petitioner’s showing of interest. In pre-
paring the Excelsior list, the Employer merely used the
hourly employee list previously submitted to the
Board. Additionally, their conclusion that the Employ-
er’s conduct was consistent with their interpretation
(referring to the preelection conference) is simply inac-
curate in my view. At the preelection conference on
the day of the election, the Petitioner’s representative
asked about the status of employee Tucker. The Em-
ployer responded that it intended to challenge Tucker’s
vote. However, there was no discussion as to the eligi-
bility of any other individual on the Excelsior list.
What my colleagues seem to be saying is that parties
to an election, without being asked, must nonetheless
volunteer in advance any potential challenges they may
wish to make. That of course, is incorrect.
I further find my colleagues’ conclusion inconsistent
with a considerable body of precedent. In American
Printers & Lithographers,1 the Board considered a
challenged ballot in a stipulated election. In reversing
the trial examiner, who had concluded that the chal-
lenge should be overruled based on the stipulation, the
Board concluded that the unit description set forth in
the stipulation did not preclude passing on the eligi-
bility of the challenged voter:
Thus, the stipulation here defines in general terms
the composition of the unit but is not conclusive
on questions concerning eligibility. This is appar-
ent from the absence of an express agreement that
eligibility is limited to those whose names appear
on an approved eligibility list4 and the provision
in the stipulation that the parties’ observers are
authorized ‘‘to challenge the eligibility of voters.’’
4 Norris-Thermador Corporation, 119 NLRB 1301.
Here, as in American Printers, there is no Norris-
Thermador list, and the stipulation provides for observ-
ers authorized ‘‘to challenge the eligibility of voters.’’
In West Virginia Newspaper, 265 NLRB 446 (1982),
the Board considered challenges in an election con-
ducted pursuant to a stipulation for certification on
consent election. The unit was described as ‘‘all full-
time and regular part-time mailroom employees, in-
cluding inserters,’’ and ‘‘all mailroom employees, in-
cluding inserters.’’ The hearing officer found that all
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
inserters were included in the unit and eligible to vote.
The Board stated as follows:
As found by the Hearing Officer, the evidence
clearly establishes that the parties, . . . have in-
cluded the position of inserters in the existing
unit.
However, contrary to the Hearing Officer’s
finding, our inquiry does not end there. We must
still determine the voting eligibility of each of the
challenged inserters. The challenged inserters are
‘‘on call’’ employees. The Board has held that
such employees are eligible to vote if they regu-
larly average 4 hours of work per week in the
quarter preceding the election. Here, the payroll
records show . . . . Therefore, only David
Comely is eligible to vote. [Ibid; emphasis
added.]
In NLRB v. Speedway Petroleum, 768 F.2d 151,
155–157 (7th Cir. 1985), the court enforced the
Board’s decision (272 NLRB 282) resulting from an
underlying determination regarding challenged ballots
in an election conducted pursuant to a stipulation. The
court observed as follows:
Where the pre-election stipulation is ambiguous as
to whether the employees whose ballot is chal-
lenged was included within the bargaining unit, it
is clear that the stipulation is to be construed con-
sistently with established or crystallized Board
policies.
. . . .
Application of the above rules to the present situ-
ation indicates that the Board was entirely correct
in applying Board policies in its decision to sus-
tain the Corrigan ballot challenge despite the ex-
istence of a pre-election stipulation. The Board
sustained the Corrigan ballot challenge because it
found that Corrigan was a ‘‘casual employee.’’
. . . .
We agree with the position of the Board at oral
argument that the submission of an Excelsior list,
which is mandatory and is utilized in every rep-
resentation election, is of little help in determining
the intended scope of a pre-election stipula-
tion. . . . To allow the use of extremely broad
language in a standard pre-election stipulation
combined with the naming of a specific employee
in an Excelsior list to preclude a ballot challenge
to that named employee would severely under-
mine the Board’s important and proper role in
regulating representation elections.
In sum, there is no Norris-Thermador list here, and
the Excelsior list is of little help in determining the in-
tended scope of a preelection stipulation. That stipula-
tion here defines in general terms the composition of
the unit, but is not conclusive on questions concerning
eligibility. ‘‘This is apparent from the absence of an
express agreement that eligibility is limited to those
whose names appear on an approved [Norris-
Thermador] list.’’ A finding that all eligibility issues
were resolved by the parties’ stipulation is in my view
inconsistent with the stipulation itself, and the Board’s
own case handling procedures.
Accordingly, I would consider and resolve the chal-
lenged ballots under the Board’s established standards
regarding ‘‘on-call’’ employees.