Land-O-Sun, L.L.C.

National Labor Relations Board - Unpublished Board Decisions

Aug 5, 2010

05-UC-000405 (N.L.R.B. Aug. 5, 2010)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
LAND-O-SUN, LLC
Employer
and Case 5-UC-405
BAKERY, CONFECTIONERY,
TOBACCO WORKERS AND GRAIN
MILLERS INTERNATIONAL UNION
LOCAL 358
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s administrative
dismissal of the petition raises no substantial issues warranting reversal of the Regional
Director’s action. In denying review, we agree with the Regional Director that the
Employer is precluded from seeking to clarify the unit to exclude its clericals on the basis
that they are “office clericals.” The Employer explicitly included “plant clericals” in the
stipulated bargaining unit and the five employees the Employer now seeks to exclude
were, at the time of the stipulation, the only “clericals” employed by the Employer at its
Richmond location. In seeking now to litigate the status of these employees, the
Employer asserts, in effect, that it stipulated to the inclusion of a vacant classification.
We find that assertion untenable under the circumstances herein. Therefore, we agree
with the Regional Director that, in light of these facts, the Employer “[o]bviously. . .
included all five employees as plant clericals.”1 Cf. Premier Living Center, 331 NLRB
123 (2000) (finding that the employer, which specifically stipulated to the inclusion of
LPNs, could not thereafter litigate their supervisory status in an attempt to exclude them
from the unit); I.O.O.F. Home of Ohio, Inc., 322 NLRB 921 (1997) (holding that the
respondent, which had stipulated to the inclusion of LPNs in the certified unit but later
withdrew recognition from the union on grounds that it had "reconsidered" and now
believed the LPNs to be supervisors, was barred from raising the supervisory issue as a
defense to a refusal to bargain allegation). In addition, the Employer included all five
clericals on its Excelsior2 list and did not challenge these employees’ ballots at the
election. Finally, the Employer does not allege any changed circumstances affecting the
clericals, and has presented no newly discovered or previously unavailable evidence.
Accordingly, dismissal of the petition is affirmed.

1 Contrary to the Employer, Kirkhill Rubber Co., 306 NLRB 559 (1992), is not controlling under the
circumstances of this case. There, unlike here, the language of the stipulated election agreement did not
specifically refer to leadpersons, and thus was not determinative of the leadpersons’ status. In the present
case, the stipulated election agreement expressly includes “plant clericals” in the bargaining unit and the
Employer employs no clericals other than the ones it now seeks to exclude. Therefore, unlike in the
stipulation in Kirkhill Rubber, there is no ambiguity as to the status of the Employer’s only clericals.
2 Excelsior Underwear, 156 NLRB 1236 (1966).
WILMA B. LIEBMAN, CHAIRMAN
CRAIG BECKER, MEMBER
MARK GASTON PEARCE, MEMBER
Dated, Washington, D.C., August 5, 2010.