(dissenting) :
I most respectfully state my disagreement with my brothers insofar as their opinion deals with the Union’s challenges of the ballots of the five employees who were classified as “order dispatchers and field clerks” and insofar as it affirms the Board’s decision upholding the challenges and refusing to permit the challenged ballots to be counted. The result is all-important to the parties involved in that it rejects the Company’s principal defense to the charge that it violated the Act by refusing-to bargain.
To a matter of such importance there should be a more realistic approach without overlooking or minimizing the perti-nency of established facts. The total number of employees is quite small although the operations of the Company are spread over several counties. Including the five employees whose votes were rejected there were only about forty-five employees eligible for inclusion in an appropriate bargaining unit. The Union had conducted an organizing campaign among the employees and from common knowledge necessarily acquired by those who constantly deal with such procedures, the conclusion is inescapable that within a very short time the organizers would have'become acquainted with the individuals comprising such a small group and would have familiarized themselves with the location of each employee and the nature of the duties and services performed by or rendered by each. With my own knowledge, admittedly limited and acquired largely from cases before us on review, I could not easily be persuaded otherwise. No particular expertise is required in reaching such a conclusion.
There is no dispute that, at the representation hearing, one of the seventeen employment categories mentioned by the company representative was that of “order dispatchers and field clerks.” A separate, and distinct classification which was discussed was that of “office clericals.”1 Each of five girls whose votes were challenged was employed in one of the, five branch offices serving the area of the Company’s operations. They were not identified by name but neither were the office clericals named. The five were classified by the Company as “order dispatchers and field clerks.” If there had been any question it could have been pursued by the union representative *576who cross-examined the company representative at length and in detail concerning the identification and duties of other employees in other classifications. No question was raised by the union representative or by the Hearing Officer as to those to be included in the now disputed classification.
One of the seventeen categories mentioned and discussed at the representation hearing is not here involved. As to the remaining sixteen categories the Hearing Officer asked the union representative: “Do you agree that those categories that were listed, and classifications, should be included in the unit?” The answer was: “Yes, sir.” The Officer then inquired: “Do you so stipulate?” and the union representative replied: “I so stipulate, and I want to include these two, what he called welder foremen.” Later there was a discussion with reference to certain welders who were described by company representatives as foremen and claimed to be ineligible for inclusion in the bargaining unit.
At the conclusion of the hearing the respective representatives of the parties and the Hearing Officer reviewed the proceeding as follows:
“(Union Representative) Well, the only disagreement we have is over the welder foremen, or leader welders, and I think the record has enough information in there for them to settle that, so I’ll forego any argument.”
The company representative, in answer to the Hearing Officer’s inquiry, stated: “I take the same position as Mr. Wilson [the union representative], I think the contents of the record will be adequate, for the Board to determine the ruling on the welder foremen, Donnell and Williams.”
Thereafter, the Board’s Regional Director, following a review and analysis of the transcript of proceedings, issued his Decision and Direction of Election in which he affirmed the Officer’s rulings, finding them to be “free from prejudicial error.” Further, he determined that “[t]he parties are in essential agreement as to the composition of the unit and disagree only with respect to the unit placement of three hourly-paid employees who work with crews * * (Emphasis supplied.) He directed an election by the variously classified employees in the unit who had been declared to be eligible.
Since twenty-two votes were cast for the Union, twenty against the Union and five votes were challenged, the outcome of the election was contingent on the uncounted votes. By direction the Company had provided a list of eligible voters in alphabetical order and by job classification and it was available for inspection by representatives of the Union at a pre-election conference held at the voting place. It was then that the union representative asked to see the list of eligible voters and he and an employee, Robert W. Deffenbaugh, who was a union adherent and was acting as an election observer for the Union, took the list some distance away from the Board Agent’s table and conferred together for some minutes, returning the list to the Agent with check marks in ink after seven names on the list and cross marks in ink in front of three others. The Agent explained to them the official purpose of the list and its use by the Agent and the observers and further explained that they had no right to mark it up. At his request an unmarked carbon copy was then provided. It was after this conference and during the progress of the voting that the ballots of the five “order dispatchers and field clerks” were challenged.
At the time of asserting the challenges the Union charged that the challengees were office clericals and thus ineligible. However, the supplemental decision made after an investigation contained the statement:
“The petitioner [Union] contends that it had not intended to stipulate to the inclusion of the order dispatcher-field clerks; their agreement was to the inclusion only of those whose duties *577were described in the record. The petitioner had stipulated to the exclusion of office employees and contends that the classification in issue falls within the office clerical definition.” (Emphasis added.)
The record fails to disclose that the Union filed any statement of its contentions or position or a pleading or paper of any sort other than the petition foi election and the charge against the Company, both of which were handled favorably for the Union by the Board. The investigation conducted by the Regional Director was ex parte and the information received from the challenged voters was contained in statements made out of the presence of the Company’s representatives without any opportunity to question them with respect to their assigned duties or in any other particular. The Regional Director concluded that in the Company’s operations there are two separate groups of clerical employees, that those employed in the Hickory office are classified as office clericals while those clericals employed in the various branch offices are known as “order dispatcher-field clerks.” He further concluded that the challengees were classified as “order dispatcher-field clerks.” His final conclusion, however, as contained in his report, was that the chal-lengees “are office clerical employees and the challenges to their ballots should be and hereby are sustained.” Furthermore, it is a matter of pertinency that the Regional Director stated in his report that “the evidence presented by the Employer and otherwise adduced in the investigation shows no community of interest between the order dispatcher-field clerks and the service personnel located in the various branch offices.” Just what evidence was presented by the Company is not clear. The Company did cooperate with the investigator in making the challengees available to him for questioning. But no representative of the Company was permitted to be present and the manner and method of presenting or developing the “evidence” are not explained although it is undisputed that the “evidence” to which reference is made was gathered by the investigator alone. There was no hearing called or arranged for the purpose of obtaining information which the Regional Director apparently sought. Not included in the report or elsewhere in the supplemental decision is there any review, analysis or redetermination of the meaning, significance, or effect of the accepted stipulation relating to the “order dispatchers and field clerks.” Insofar as the record discloses, on the eligibility list prepared by the Company for use at the election there were no employees who were classified as “order dispatchers and field clerks” other than the five challengees.
These challengees who work in the Company branch offices undoubtedly do work in the enclosed office area as reported by the Regional Director but that is not dispositive of the question here nor is it persuasive. From that area they collect money from customers in payment of their bills; undoubtedly they serve customers and patrons in many ways; they take and record service and installation calls and requests from customers and prospective customers; they deliver service orders to the servicemen; they take in freight deliveries; they keep records and inventories of the supplies at the branch offices; they keep routine records pertaining to the sale and distribution of natural gas. Their work was closely related to the service employees who were installing and repairing equipment in the field. Obviously, they take orders from their superiors and are undoubtedly subject to some supervision in their routine employment which would be necessary in the operation of a branch office located at some distance from the Company headquarters. But it seems that there were no branch managers, as such, except that in most instances salesmen performed some supervisory duties and gave some orders covering routine affairs. But there is nothing appearing which indicates that these challengees are in any way closely connected with management or that in their clerical work they receive any. con*578fidential information which naturally comes to the attention of certain classes of clericals working in close relationship with company officers and supervisors who are responsible for many and varied phases of company operation and policy. This court has recognized “confidentiality” as an important factor in distinguishing between clericals who are deemed eligible or ineligible for inclusion in an appropriate bargaining unit. N.L.R.B. v. Quaker City Life Insurance Company, 319 F.2d 690, 694 (4 Cir. 1963). It would appear that, in itself, the classification of these challengees as order dispatchers and field clerks would best describe the duties assigned to and performed by them.
Thus, it is my conclusion that the Union repudiated its stipulation and that the effectiveness of the stipulation which, in my opinion, recognized and established the right of the five challengees to vote in the election, was destroyed. Such repudiation of a solemn stipulation should not be countenanced. Stipulations were urged by the Hearing Officer in the representation proceeding ánd the Board’s Rules and Regulations, Section 102.66 (29 C.F.R. 102.66), specifically authorize the use of such stipulations in these proceedings.' The Board, in its published Statements of Procedure, Section 101.20(c) (29 C.F.R. 101.20(c)), formally indicates that such stipulations are repeatedly utilized in the majority of Board representation cases.
It is not open to contradiction that there was a stipulation that order dispatchers and field clerks were to be included in the bargaining unit. It clearly appears that the five challengees were classified by the Company in that category. If there were any doubts, ambiguities or uncertainties, or if there were any misunderstandings, clarification could have been obtained at that hearing by the union representative or the Hearing Officer by asking a few simple questions. The Company stated, without equivocation, that it did have employees classified as order dispatchers and field clerks. There was no interrogation of the company representative as to the identity or the location of these employees. Without further exploration the Union stipulated that such employees would be included in the bargaining unit. No question was raised until the list was submitted by the Company on election day and then challenges were interposed only after the union representative had conferred with the one regular company employee selected by the Union as its observer. Could it be that this employee had received disturbing information with respect to the attitude of the five chal-lengees concerning union representation which indicated that they, if permitted to vote, would cast their ballots in favor of the Company and against the Union? What might have been developed in this connection if company and union representatives had been permitted to participate in the Regional Director’s investigation? Were the challenges prompted by last minute information relayed by the employee observer to the union representative rather than by a good faith doubt as to the eligibility of the challengees as qualified members of the bargaining unit as stipulated? All these questions remain unanswered and the only efficacious method of ascertaining the correct answers to such important questions would be through an adversary hearing in which both the Union and the Company could be properly represented and could participate in questioning and cross-examining the witnesses.
Absent further appropriate proceedings I conclude that the Company was justified, under the circumstances, in refusing to recognize the Union as the properly selected bargaining representative and in refusing to bargain.
. The company representative, upon inquiry, described “office clericals” by location and by a description of employment duties as follows: “Upstairs in our building [in the main office at Hickory] we have one young lady who takes care of invoices, one who takes care of payrolls, and also making checks, paying invoices; we have another young lady who is a general office worker, and we have one lady who is in charge of the billing, customers’ bills; downstairs we have three girls who act as cashiers, making work orders; we have one lady who is a combination stenographer for myself and the sales manager, industrial sales manager; and I believe that’s all.”
It was stipulated that these, so classified, would be excluded from representation in the bargaining unit.