Giummarra Electric, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1988

291 N.L.R.B. 37 (N.L.R.B. 1988)

GIUMMARRA ELECTRIC INC 37
Giummarra Electric , Inc and Local 400 , Interna
tional Brotherhood of Electrical Workers, AFL-
CIO, Petitioner Case 4-RC-16670
September 28 1988
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The National Labor Relations Board by a three
member panel has considered determinative chal
lenges in an election held November 17 1987 and
the Regional Directors report recommending dis
position of them The election was conducted pur
suant to a stipulated election agreement The tally
of ballots shows seven for and five against the Peti
tioner with four challenged ballots
The Board has reviewed the record in light of
the Employers exceptions and brief and has
adopted the Regional Directors findings and rec
ommendations only to the extent consistent with
this Decision and Order
In his report the Regional Director recommend
ed that a hearing be held with respect to three of
the four voters whose ballots were challenged Re
garding the fourth voter Joseph Beyer the Re
gional Director recommended the challenge to his
ballot be sustained The Employer has excepted to
all of these recommendations essentially arguing
that the challenges to all four voters should be
overruled We agree with the Regional Director
that a heanng is required with respect to the chal
lenged ballots of Charles Visco Timothy Wright
and William Hopei We find however that the
Employers exceptions raise substantial and materi
al issues concerning the merits of Beyer s eligibility
to vote in the election and that a hearing is war
ranted to resolve them
The Regional Director concluded that at a joint
conference held at the Regional Office the Em
ployer and the Petitioner orally agreed that Beyer
was not eligible to vote Consequently the Region
al Director found that Beyer is ineligible to vote
under the Banner Bedding2 exception to the Norris
Thermador3 requirement of a wntten signed and
' The Petitioner challenged the right to these three individuals and
Beyer to vote on the ground that they were outside the unit and there
fore ineligible to vote On April 29 1988 the Regional Director issued a
complaint in Case 4-CA-17099 based on allegations that the Employer
changed the job responsibilities of Visco and Wright to make them eligi
ble to vote The Regional Director also determined that the resoluti3n of
the challenge to William Hope s ballot might rest on the outcome of the
issues in the unfair labor practice case as well
2 Banner Bedding 214 NLRB 1013 (1974)
3 Norris Thermador 119 NLRB 1301 (1958) The Board there deter
mmed that it would consider a written and signed agreement which ex
pressly provides that issues of eligibility resolved therein shall be final and
binding upon the parties as a final determination of the eligibility issues
express agreement setting forth the names of em
ployees eligible to vote in the election The Re
gional Director noted the omission of Beyer s name
from the eligibility list submitted by the Employer
as being consistent with the parties agreement
The Employer takes issue with the Regional Di
rector s finding that there was an agreement con
cerning Beyer s eligibility to vote The Employer
claims that the parties agreed to disagree on the
eligibility of prospective voters and to defer reso
lution of all questions of eligibility to postelection
procedures The Employer notes in this regard that
the parties did not enter into a signed eligibility
agreement within the meaning of Norris Thermador
(the Regional Director did not find to the con
trary) and also asserts that the omission of Beyer s
name from the submitted eligibility list is not dis
positive of Beyer s eligibility to vote in the elec
tion The Employer thus contends that Beyer s
voting eligibility is before the Board for determma
tion on the merits We agree
Under the Norris Thermador rule a signed and
w-itten agreement by parties to a representation
election will be held binding as to voter eligibility
matters covered by it (and thus will foreclose post
election scrutiny under the community of interest
test) so long as the agreement is not contrary to
the Act or Board policy Under Banner Bedding
supra an oral agreement on voter eligibility may
also be held binding but this exception to the
signed and written requirement applies only when
there is unequivocal evidence acknowledged by
both parties that they had orally agreed to ex
clude or include the individual or individuals in
question Cooper Mattress Mfg Co 225 NLRB 200
201 (1976) Accord NLRB v Westinghouse Broad
casting 849 F 2d 15 19 (1st Cir 1988)
In the instant case the Employer denies that an
oral agreement was reached to exclude Beyer from
voting in the election Thus there is no unequivo
cal evidence acknowledged by both parties that
the parties agreed to Beyer s exclusion and there
fore this case clearly falls outside of the Banner
Bedding exception Nor is there any other proce
dural basis for finding that the parties agreed to ex
clude Beyer from participating in the election The
mere omission of Beyer s name from the eligibility
list does not amount to a Norris Thermador binding
agreement 4 Furthermore the express language of
treated therein unless the agreement is contrary to the Act or Board
policy
4 See Cooper Mattress supra 225 NLRB at 201 holding that the par
ties initialing of a footnote on the standard election eligibility list indicat
ing that a voter was to be excluded did not rise to the level of a Norris
Thermador binding agreement
291 NLRB No 3
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the stipulations unit description leaves unclear the
parties intentions with respect to Beyer s unit
status that is whether he as a specific individual
was in or out of the units Beyer s eligibility there
fore must be determined using our traditional com
munity of interest principles
Accordingly we shall remand this proceeding to
the Regional Director for a hearing to determine if
Beyer shares a community of interest with the unit
employees-and hence is eligible to vote in the
election Included of course in such a determine
tion is resolution of the question of whether Beyer
is an employee or an independent contractor
ORDER
It is ordered that a hearing be held to resolve the
community of interest issues raised by the chal
lenge to the ballot of Joseph Beyer
IT IS FURTHER ORDERED that the hearing on the
challenge to the ballot of Joseph Beyer be part of
any hearing yet to take place on the challenges to
the ballots of William Hope Charles Visco and
Timothy Wright 6 In the event a hearing on those
three individuals has occurred the hearing shall be
reopened to take evidence on Joseph Beyer s
status
IT IS FURTHER ORDERED that the manner is re
manded to the Regional Director for Region 4 for
the purpose of arranging that hearing and that the
Regional Director is authorized to issue notice of
the hearing
IT IS FURTHER ORDERED that the hearing officer
designated to conduct that hearing shall prepare
and cause to be served on the parties a report con
taming resolutions of credibility of witnesses, find
ings of fact and recommendations to the Board as
to the disposition of the issues involved Within 10
days of the date of issuance of that report either
party may file with the Board in Washington
D C eight copies of exceptions to it Immediately
upon the filing of such exceptions the party filing
the exceptions shall serve a copy of them on each
of the other parties and shall file a copy with the
Regional Director If no exceptions are filed the
Board will adopt the recommendations of the hear
ing officer 7
8 The unit includes All full time and regular part time employees in
cluding residential and service electricians mechanics finishers and help
ers employed by Guimmarra Electric Inc at its Forked River New
Jersey facility Excluded are All office-clerical employees professional
employees guards and supervisors as defined by the Act
The Employer contends that Beyer is a rougher electrician The Pe
titioner does not appear to contest his electrician status but claims he is
an independent contractor
6 We note that the Regional Director stated in his report that he in
tends to consolidate Case 4-RC-16670 with the unfair labor practice
hearing in Case 4-CA-17099
? In the event the Regional Director consolidates this proceeding with
Case 4-CA-17099 for heanng before an administrative law judge Sec
102 46 of the Board s Rules and Regulations shall apply with respect to
the filing of exceptions rather than the above procedure