Lumbard, Chief Judge, Friendly, and Smith, Circuit Judges.
The Company petitions to review and set aside an order of the National Labor Relations Board, 151 NLRB No. 128, and the Board counterpetitions for enforcement. Sec. 10(c), (e) of the Act, 29 U.S.C. § 151 et seq. The Board found that the Company violated § 8(a)(5) and (1) of the Act by refusing to bargain with the Union (Local 341, United Marine Division, National Maritime Union, AFL-CIO) certified by the Board following representation proceedings. Error found, petition to review granted and enforcement denied.
The Company and Union entered into a Stipulation for Certification Upon Consent Election. The agreement defined the appropriate bargaining unit as
"all operating employees, including maintenance mechanics, truck drivers, and warehouse-yardmen at the Employer's Newburgh, New York plant, excluding all non-operating employees, including confidential field stenographers, office clericals, guards, watchmen, professional and supervisory employees as defined in the Act."
The Company operates a bulk storage terminal at Newburgh where it sells automobile products, both to customers who come there and to service stations by delivery. The Company also operates a depot at Peekskill, New York, which is staffed by one man, a yard foreman, and from which no deliveries are made. At Newburgh are employed, besides supervisors, five truck drivers and one warehouseman-yardman. Additionally, Joseph White, whose ballot and status are at issue, is a maintenance (pump) mechanic who repairs equipment of the Company's customers in the field. (He also relieves the yard foreman at Peekskill one and one-half days a week.) The truck drivers begin work at the terminal and return there at night. White is supervised by the Newburgh supervisors, but he does not report daily to Newburgh, and takes the company service truck allotted him home each night. On average he reports to the terminal one and one-half times a week. While his time and attendance records are kept at Newburgh, he is paid by bank check purchased at Newburgh and mailed to him, rather than in cash like the other six employees.
White was a member of the preceding union which represented Newburgh employees. After a strike, certain members, White included, petitioned for decertification of the old union, but as the union disclaimed any interest in these employees, the petition was dismissed. The attorney for that union also represented the present union. He was present at the negotiations resulting in the stipulation. In these negotiations there was distributed a list of the seven employees, including White. Each employee was discussed. As to White, the attorney said, "he is the pump mechanic who runs this truck out of his house," or words to that effect. Opposite each name on the list was written the initials of the employee's job; for White was written "MM," for maintenance mechanic.
The parties then drafted the unit of operating employees quoted above. The list of employees was not signed and did not become a part of the agreement. At the election three votes were cast for the Union, two against, and two were challenged. Only one, that of White, is at issue here. The Regional Director investigated the challenge, which was made on the ground that White was a supervisor; later the Union altered its claim to assert that White was not employed at Newburgh. The Regional Director upheld the challenge. The Board, after exceptions were filed, directed a hearing. The Hearing Officer recommended that the challenge to White's ballot be overruled. The Board disagreed, and found that White did "not share a community of interest with the operating employees at the employer's Newburgh plant."
The Company refused to bargain in order to obtain review; the Union filed an unfair labor practice charge; and the Regional Director filed a complaint. The Board concluded that the Company violated the Act, supra, and issued an order requiring the Company to cease and desist, to bargain on request, and to post appropriate notices. 151 NLRB No. 128.
Since the Company concedes it refused to bargain, the issue is whether the Board properly excluded White's ballot. The Board will honor the parties' agreement on eligibility expressed in a signed eligibility list where the agreement contains an express provision that the list shall be binding as to eligibility, Norris-Thermador Corp., 119 NLRB 1301 (1957), or where, despite the absence of such provision, the parties discussed the employees by job or name and had full opportunity to consider their eligibility. See Shoreline Enterprises Inc. v. NLRB, 262 F.2d 933, 69 A.L.R.2d 1174 (5 Cir. 1959).*fn1 But here the parties did not sign the list of named employees; it did not become a part of the consent agreement and the Board properly looked rather to the stipulated definition of the bargaining unit.
In such cases, where the parties stipulate that the appropriate unit will include given jobs, the Board may not alter the unit; its function is limited to construing the agreement according to contract principles, and its discretion to fix the appropriate bargaining unit is gone. In NLRB v. J.J. Collins' Sons, 332 F.2d 523 (7 Cir. 1964), the Stipulation defined the unit to include "all paper cutting machine operators, all folding machine set-up men, all hand bookbinders and their apprentices." The company challenged the ballot of a stock-handler; the Board had found that this employee, though excluded from the agreed unit, had a community of interest with the included employees and should therefore be counted. The court denied enforcement, concluding that the Board could not thus expand the agreed-upon unit.
Similarly, in NLRB v. Joclin Mfg. Co., 314 F.2d 627 (2 Cir. 1963), the Stipulation described the unit as "all production and maintenance employees workers, excluding office, clerical and professional employees . . ." The Board had counted the votes of two clerical workers, on the ground that only office clericals, but not plant clericals, were excluded. The court held that the Board's function was one of contract interpretation, that the intent of the parties controlled, and that the question should be redetermined by the Board on remand. See also NLRB v. United Dairies, 337 F.2d 283 (10 Cir. 1964).
But the Board here claims that principles of community of interest are relevant to the construction of the phrase "at the Employer's Newburgh, New York plant." This is reconcilable with Collins and Joclin, since the Board is not trying to expand or contract the job categories which have been agreed upon as comprising the bargaining unit. Rather, it is engaged in applying job categories to given individuals. Compare The Magnavox Co., 126 NLRB 1419, 1420-1 (1960). We conclude, however, that the Board was incorrect.
Here the parties clearly had in mind White when they defined the unit to include maintenance men. White was the only maintenance man. (The fact that his category is written in the plural is without significance; the same was done as to another category, "warehouse-yardmen," of which there was only one.) Especially where there are a limited number of employees, and the parties are able to, and do, scrutinize each name, it is unlikely that the parties intended to leave to the Board the right, in the end, to determine whether such a given employee will be entitled to ...