Lane Aviation Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1975

218 N.L.R.B. 590 (N.L.R.B. 1975)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lane Aviation Corporation and Teamsters Union,
Local No. 413, affiliated with the international
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Petitioner.
Case 9-RC-10185
June 18, 1975
SUPPLEMENTAL DECISION AND
DIRECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Pursuant to the authority granted it under Section
3(b) of the National Labor Relations Act, as
amended , a three-member panel has considered
determinative challenges in an election held July 31,
1974,1 and the Regional Director's report recom-
mending disposition of the same . The Board has
reviewed the record in light of the exceptions and
brief filed by the Employer, and hereby adopts the
Regional Director's findings and recommendations.2
As a result of this action, we shall direct that the
challenged ballots of John Zaros 3 and William
Johnson be opened and counted, and if the second
revised tally of ballots discloses that the challenge to
the ballot of Motice Smith is still determinative, we
also shall direct that a hearing be held to resolve all
issues in connection with this challenged ballot.
DIRECTION
It is hereby directed that the Regional Director for
Region 9, shall, pursuant to the Board's Rules and
Regulations, within 10 days from the date of this
Supplemental Decision and Direction, open and
count the challenged ballots of John Zaros and
William Johnson and, thereafter, prepare and cause
to be served on the parties a second revised tally of
ballots, including therein the count of said ballots,
upon the basis of which he shall, if possible, issue the
1 The election was conducted pursuant to a Decision and Direction of
Election, issued on June 21 , 1974, by the Board See 211 NLRB 824. The
tally showed I I votes for the Petitioner and 8 votes for the Intervenor, Idea
and Development Council. There were six challenged ballots, sufficient in
number to affect the results of the election On October 1, 1974, pursuant to
agreement of the parties, a revised tally of ballots issued showing that the
Petitioner's vote total unchanged at 11 votes , but that there were 10 votes
for the , Intervenor. The remaining three challenged ballots were sufficient in
number to affect the results of the election.
2 In the absence of exceptions , we adopt, pro forma, the Regional
Director's recommendation that the challenge to the ballot of William
Johnson be overruled and that his ballot be opened and counted and that in
the event that the ballot of Motice Smith is determinative, then a hearing is
to be held on this issue.
3 Contrary to our dissenting colleague, we believe that the Regional
Director, in determining that John Zaros was an eligible voter , properly
relied upon an informal settlement agreement executed by the parties and
approved by the Regional Director prior to the time of the election. Under
the terms of the settlement agreement, the Employer was required to and
did make an unconditional offer of immediate reinstatement to Zaros and,
appropriate certification. If, however, -the second
revised tally of ballots should show that the ballot of
Motice Smith is still determinative, the following
shall apply:
IT IS FURTHER DIRECTED that the Regional Director
shall schedule a hearing, as soon as practicable, and
in accordance with the Board's Rules and Regula-
tions, as amended, before a duly designated Hearing
Officer for the purpose of resolving all issues raised
in respect to the challenged ballot of Motice Smith.
The said Hearing Officer shall prepare and cause to
be served on the parties a report containing resolu-
tions of the credibility of witnesses, findings, conclu-
sions , and recommendations concerning these issues.
Within 10 days from the issuance of such report, any
party may file with the Board in Washington, D.C.,
eight copies of exceptions thereto. Immediately upon
the filing of such exceptions, the party filing the same
shall serve a copy thereof on the other parties, and
shall file a copy with the Regional Director.
MEMBER KENNEDY, dissenting in part:
I dissent from that portion of the Supplemental
Decision and Direction which instructs the Regional
Director to open and count the ballot of John Zaros.
The basis for overruling the challenge to Zaros'
ballot is an informal settlement agreement about
which there is a disagreement between the Regional
Director and the Employer. The Employer contends
that it was agreed and understood by Zaros, the
Board agent representing the Regional Director, and
the Employer that Zaros would not and could not be
reinstated if Zaros failed to obtain a valid Ohio
driver's license . The Employer further contends that
there was substantial doubt at the time the settlement
agreement was signed as to whether Zaros could
obtain a valid license . Thereafter, the Employer
offered reinstatement 'to Zaros, but he did not return
to work for the Employer by July 31, 1974, the date
of the election herein. Indeed, as of the date of the
as the Regional Director found , that offer was accepted by Zaros. Zaros was
never actually returned to his job, however, because the Employer claimed
that Zaros ' reinstatement was conditioned upon his being able to obtain a
valid Ohio driver's license and Zaros was apparently unable to satisfy this
condition
In our opinion , the settlement agreement is clear and unambiguous on its
face in its requirement that the Employer offer immediate and uncondition-
al reinstatement to Zaros. To give effect to the Employer 's understanding of
an oral agreement reached by the parties ,, we would be required to accept
parol evidence for the purpose of varying the terms of the written
agreement . Such a policy must be rejected, not only because it is at odds
with the basic principles of contract law, but because it would cause
administrative havoc in the processing of cases by this Agency.
Finally, unlike our dissenting colleague, we see nothing unwarranted or
unusual in the fact that the Regional Director may consider it necessary to
vacate the settlement agreement . If, as is indicated here, the Employer
persists in refusing to comply with the settlement agreement it voluntarily
entered into, the only appropriate course of action open to the Regional
Director would be to set aside the settlement agreement and reinstate the
complaint.
218 NLRB No. 31
LANE AVIATION
Regional Director's Report, Zaros had not returned
to work for the Employer.
We are administratively advised that as soon as the
Board issues its Supplemental Decision and Direc-
tion herein the Regional Director intends to with-
draw his approval of the informal settlement agree-
ment and issue a complaint alleging that the
discharge of Zaros on April 16, -1974, violated
Section 8(a)(1) and (3) of the Act.
I cannot agree with the Regional Director's
conclusion that Zaros' eligibility is analogous to that
of an employee on leave of absence. In my view,
CORPORATION 591
Zaros' status is similar to that of any other alleged
discriminatee, under our Act, and his eligibility to
vote is contingent upon the Board's disposition of the
8(a)(1) and (3) complaint to be issued with respect to
Zaros. If that complaint is sustained by the Board,
then Zaros is an eligible voter. If that complaint is
dismissed as to Zaros, he is not eligible to vote.
In my view, it is improper to rule that Zaros' ballot
should be counted on the basis of a settlement
agreement which we know the Regional Director
intends to void by his withdrawal of his approval.