We decide in this case the validity of a union election among clerical workers at respondent's plant in Gadsden, Alabama. The election went in the union's favor by one vote, but the company refused to recognize the results because of the participation of an allegedly unqualified voter and because of a claimed misrepresentation by an electioneering union official. The company's timely objections to the election were overruled by the Board, which certified Service Employees International, AFL-CIO, as the collective bargaining agent. When the company refused to bargain with the union, still insisting on the invalidity of the election, the union filed a complaint with the Board, which found that the company's refusal constituted an unfair labor practice. The Board then ordered respondent to bargain upon request and, in the present proceedings, seeks enforcement of that order.

The contested voter in this case, Virginia Mashburn, was not working at the time of the election but is claimed to have been on maternity leave. Support for this contention comes from the company's failure to issue a formal notice of employment termination when she ceased work and its retention of her on the payroll, as is evidenced by her receipt of wages for Labor Day, a paid holiday, which predated the election by only one month. The company counters by attributing Mashburn's payroll status to clerical error and by pointing out the absence of any proof that the company ever agreed to place Mashburn on leave. We need not decide between these arguments, as did the Board, which found that Mashburn was an employee on election day. Instead, we hold that Mashburn's disqualification was established by the omission of her name from a voter eligibility list, which the company had submitted to the Board agent. Since we make this disposition of the case, we also do not reach the issue of union misrepresentation.

The facts of this case begin with the union's petition for an election among twelve clerical employees.1 After the filing of the petition, a Board representative served as an intermediary between the union and company in negotiations looking toward a consent election agreement. The negotiations succeeded with the signing of a "Stipulation for Certification Upon Consent Election," which provided, among other things, that the parties would furnish "an accurate list of all the eligible voters to the Regional Director. Seeking to comply with the stipulation, the company forwarded a list of twelve clerical workers, which did not include Virginia Mashburn's name. The Board agent accepted this list, and the election was held. When Mashburn appeared at the plant and attempted to vote, she initially was denied a ballot because her name was not on the voter list. The Board agent ultimately allowed her to cast a challenged ballot, which was later counted upon the Regional Director's determination that Mashburn had been on maternity leave at all relevant times.

Respondent does not claim that the voter list satisfied the Norris-Thermador rule,2 which gives binding effect to written eligibility agreements, for the simple reason that there was no written agreement in this case.3 Respondent contends instead that the voter list falls under the narrow exception to Norris-Thermador created in Banner Bedding, Inc., 214 N.L.R.B. 1013, 87 L.R.R.M. (BNA) 1417 (1974), Remanded without published opinion, 556 F.2d 588 (9th Cir. 1977),4 which held that an oral eligibility agreement will be considered binding if made in the presence of a Board agent, provided that its existence and terms are undisputed by the parties. Accord NLRB v. Mike O'Connor Chevrolet-Buick-GMC Co., 512 F.2d 684, 686-87 (8th Cir. 1975); Esten Dyeing & Finishing Co., 219 N.L.R.B. 286, 89 L.R.R.M. (BNA) 1621 (1975). The company finds support for the applicability of Banner Bedding in telephone conversations it claims to have had with the Board's agent. Shortly after the consent election agreement was signed, the Board scheduled a unit determination hearing, but a company representative contacted the Board agent by telephone, telling him that the hearing would be unnecessary if the union would agree to the submitted voter list. The company fully expected the union's agreement because the petition for election had referred to a bargaining unit of twelve persons, and the company's list named twelve voters. The Board agent subsequently informed the company, via telephone, that the union had accepted the list and that the unit determination hearing would be cancelled.

The Board's sole response to the company's claim of a binding oral agreement is that the Board agent never convened a face-to-face meeting with the parties in which eligibility issues could have been discussed and resolved. Unlike the Board, we attach no importance to the absence of a personal meeting between the parties in the presence of the Board agent. Banner Bedding requires the agent's presence only in order to avoid controversies over the existence and terms of the oral agreement, See 214 N.L.R.B. at 1014, 89 L.R.R.M. at 1417-18; NLRB v. Mike O'Connor Chevrolet-Buick-GMC Co., 512 F.2d at 686-87, and on the facts here the agent's telephone conversations with the parties were sufficient for that purpose. As to the absence of any actual discussion between the parties concerning Mashburn's status, we fail to understand why this should be a reason for discarding the eligibility agreement. The probable explanation is that neither party considered Mashburn an employee and saw no need for discussion. After all, the union's own petition for election apparently excluded Mashburn since it defined the bargaining unit to include twelve rather than thirteen employees. Moreover, given the size of the unit, it is difficult to believe that the union could have simply overlooked Mashburn. Even if it had, however, we would still uphold the list because the inadvertent omission of an eligible employee much less one of questionable status does not render a vote list susceptible to challenge by either party5 unless the mistake is discovered in sufficient time to permit its correction before the balloting begins, which was not the case here. See Southampton Marine Corp., 217 N.L.R.B. 649, 89 L.R.R.M. (BNA) 1117 (1975); Pyper Construction Co., 177 N.L.R.B. 707, 71 L.R.R.M. (BNA) 1501 (1969).

We do not in any sense imply approval of the practice followed here in settling the voter list. Written agreements, under the Norris-Thermador rule noted above, are obviously far preferable to such loose procedures as these. But we do refuse to elevate Norris-Thermador to the status of a statute of frauds, especially where an agent of the party urging us to do so the Board himself made the arrangements for definition of the list and voting unit and assured the employer that the union had agreed to it. Indeed, under these circumstances classic notions of estoppel would likely prevail even were a statute of frauds before us.

Accordingly, for the reasons set out above, the application for enforcement of the Board's order is DENIED.