Kirkhill Rubber Co.

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 559 (N.L.R.B. 1992)

559
306 NLRB No. 102
KIRKHILL RUBBER CO.
1 Excelsior Underwear, 156 NLRB 1236 (1966).
2 See, e.g., Niagara University, 227 NLRB 313 (1976) (Board
clarified unit during certification year to include four challenged vot-
ers); D’Youville College, 225 NLRB 792 (1976) (Board clarified unit
during certification year to include four challenged voters); Belo
Broadcasting Corp., 225 NLRB 253 (1976) (Board clarified unit
during certification year to include two challenged voters).
3 Two Board members rested the dismissal on other grounds as
well. They believed that, absent a question concerning representation
or a clear showing that as a result of changed conditions the employ-
ees composing existing units have become so merged into a single
overall unit as to make their continued maintenance in separate units
inappropriate, the merger of established units is a matter which,
under the statutory scheme, is to be left for voluntary bargaining by
the parties.
Kirkhill Rubber Company, Petitioner and United
Rubber, Cork, Linoleum and Plastic Workers
of America, AFL–CIO. Case 21–UC–356
February 28, 1992
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 23, 1991, the Regional Director for Re-
gion 21 issued a Decision and Order in which she dis-
missed the Employer-Petitioner’s unit clarification peti-
tion because it was filed during the certification year.
The Employer filed a timely request for review.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has duly considered this matter and has
decided to grant review, reverse the Regional Direc-
tor’s dismissal, and remand the case to the Regional
Director for further processing.
On June 14, 1991, the Regional Director approved
a Stipulated Election Agreement in which the parties
agreed to a unit of production and maintenance em-
ployees, truck drivers, and shipping and receiving em-
ployees, excluding, inter alia, supervisors as defined in
the Act. Prior to the election, the Employer provided
an Excelsior1 list that included the names of 26
leadpersons. At the election, the names of the 26
leadpersons remained on the voting eligibility list and
each voted an unchallenged ballot.
On July 8, 1991, the Board certified the Union as
the collective-bargaining representative of the unit em-
ployees. On August 1, the Employer filed a unit clari-
fication petition seeking to clarify the unit by having
the Board determine whether the 26 leadpersons are
supervisors within the meaning of Section 2(11) of the
Act. The Regional Director dismissed the unit clari-
fication petition, noting the Board’s general rule man-
dating the dismissal of representation petitions filed
during the certification year. Based on the Board’s ma-
jority decision in Firestone Tire & Rubber Co., 185
NLRB 63 (1970), the Regional Director concluded that
the certification year rule applied to the instant unit
clarification petition. For the reasons that follow, we
disagree.
The Board’s certification year rule was intended to
effectuate the policy of affording the employer and the
union a full opportunity to arrive at an agreement with-
in the certification year, which the Board has con-
cluded is the period during which a certified union’s
status as statutory bargaining representative cannot be
challenged. Ray Brooks v. NLRB, 348 U.S. 96, 103
(1954); Centr-O-Cast & Engineering Co., 100 NLRB
1507, 1508 (1952). The Board dismisses representation
petitions filed during the certification year, whether
they be initiated by union, employer, or employee, to
provide stability and peace in the bargaining process
by affording the employer and the union a full oppor-
tunity to achieve a collective-bargaining agreement.
A unit clarification petition filed during the certifi-
cation year, however, does not necessarily infringe on
a union’s representative status, nor does it detract from
the bargaining that is to take place during that year. In-
deed, it is not unusual for the Board to leave unre-
solved the status of employees who had voted under
challenge during the election, but whose status was not
determinative of the election results. In such cir-
cumstances, where the union receives a majority of the
ballots cast, the Board will certify the union. If the
parties cannot thereafter resolve the status of the non-
determinative challenged voters, the Board will process
a unit clarification petition to determine the placement
or status of the contested individuals.2 Accordingly,
the Board’s processing of a unit clarification petition
during the certification year is not inconsistent with its
policy of barring representation petitions before the
certification year has expired.
We do not find that Firestone Tire & Rubber Co.,
supra, relied on by the Regional Director, is controlling
here. In Firestone, the petitioner sought to consolidate
two units by adding a recently certified firemen unit to
an uncertified production and maintenance unit, either
without or after a Board-conducted election among the
firemen to determine their unit preference. In dis-
missing the unit clarification petition, the Board major-
ity held that it would apply the Centr-O-Cast rule re-
quiring the dismissal of a representation petition filed
during the certification year.3
The obvious result of clarifying the unit in Firestone
would have been the obliteration of the certified unit
by ignoring the unit employees’ recent vote to estab-
lish the separate unit. In the instant case, the Employer
does not seek to vitiate the effect of the unit certifi-
cation by merging two units or otherwise to force the
employees in the certified unit to be represented in an-
other unit. Rather, the Employer seeks to clarify the
unit so that it consists only of those employees actually
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The language of the Stipulated Election Agreement does not spe-
cifically refer to leadpersons and is therefore not necessarily deter-
minative of their status. The stipulated unit does, however, exclude
‘‘supervisors as defined in the Act.’’ Thus, to exclude the
leadpersons now the Employer must demonstrate they were, in fact,
statutory supervisors at the time of the stipulation or that, since the
stipulation, their functions have changed to a degree justifying their
exclusion now. McAlester General Hospital, 233 NLRB 589 fn. 1
(1977).
We find no merit to the Regional Director’s suggestion that the
Employer acquiesced to the inclusion of the leadpersons in the unit
by placing their names on the Excelsior list and allowing them to
vote without challenge. The placement of an employee’s name on
the Excelsior list is not determinative of that employee’s status. Cf.
NLRB v. Emro Marketing Co., 768 F.2d 151, 157–158 (7th Cir.
1985); Cavanaugh Lakeview Farms, 302 NLRB 921 (1991).
5 See dissenting opinion in Firestone, supra at 95. We overrule
Firestone to the extent that the decision there is inconsistent with the
instant decision in that it requires the dismissal of any unit clarifica-
tion petition filed during the certification year.
covered by the unit description to which the parties
stipulated.4 We do not read the Board’s finding in
Firestone that the unit clarification petition there was
untimely to preclude the processing of any and all unit
clarification petitions filed during the certification year.
In any event, because we believe that the Centr-O-Cast
rule is limited in its application to representation peti-
tions filed during the certification year that challenge
the majority status of an incumbent certified represent-
ative, we would not apply it to unit clarification peti-
tions that look ‘‘toward the continuation of the collec-
tive-bargaining relationship’’ that exists between the
certified employee representative and the employer.
For these reasons, we order that the instant petition be
remanded to the Regional Director for further proc-
essing.5