Johnson's Auto Spring Service

National Labor Relations Board - Board DecisionsNov 26, 1975

221 N.L.R.B. 809 (N.L.R.B. 1975)

JOHNSON'S AUTO SPRING SERVICE 809 Robert C. Johnson , Sr., d/b/a Johnson 's Auto Spring Service and International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Local #110, Petitioner. Case 6-RC-7191 November 26; 1975 DECISION. ON REVIEW BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On July 28, 1975, the Regional Director for Region 6 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found appro- priate and directed an election in a unit consisting of all service department and spring department em- ployees including mechanics and trainees employed by the Employer at its Altoona, Pennsylvania, facility but excluding the driver-salesman, office clerical employees, guards, professional employees, and supervisors as defined in the Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision, contending, inter alia, that the Regional Director erred in the inclusion of the trainees in the unit. By telegraphic order dated August 22, 1975, the National Labor Relations Board granted the request for review with respect to the above-mentioned trainees, denied it in other respects, and stayed the election pending the decision on review. The Em- ployer filed a brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issue under review, including the brief, and makes the following findings: The Employer is engaged in the servicing of automobiles and trucks including the repair and rebuilding of auto and truck springs. Its only facility is located at Altoona, Pennsylvania, and consists of a single building. The Petitioner seeks to represent all employees of the service and spring repair depart- 1 The Employer's operation is divided into four departments. service, spring repair, bookkeeping, and sales The two employees that make up the bookkeeping department were excluded by the Regional Director on the basis of being office clerical employees . The driver-salesman in the sales department, whose duties consist of contacting the Employer's accounts and locating and securing new accounts and who is paid on a commission basis, was found by the Regional Director to have indifferent interests and working conditions from the employees of the service and spring repair departments, and accordingly was excluded from the unit No issue with respect to these exclusions was raised in the request for review. 2 The supervisory status of the service department supervisor was 221 NLRB No. 143 ments. The Employer contends that the employees classified as trainees should be excluded from the unit.' The service, department consists of a supervisor, one, mechanic, ; two mechanic trainees,- and one mechanic operator trainee. In the spring repair department there is an acting supervisor2 and one sprmgmaker trainee. All present employees classified as trainees were hired through the Pennsylvania State Bureau of Employment. They are not required to have experience' or any specific educational back- ground. All employees in the service and spring repair departments work in close proximity. The trainees work the same hours as the mechanic, a 40- hour week, and are paid time and a half for overtime. They punch the same timeclock and wear the same uniform. However, their hourly rate is substantially less than that received by the mechanic. As trainees, their continued employment is subject to the satisfac- tory completion of a 90-day probationary period. During the training period, they do not receive the fringe benefits accorded the permanent employees. The Employer further urges that the trainees do not have a reasonable expectation of continued employ- ment. In support of this contention, the Employer offered evidence that of 13 trainees previously hired during 1974, only the present mechanic became a permanent employee. With respect to the others, nine quit, two were terminated before completion of the 90-day period, and one voluntarily terminated his employment after completion of the training period. The fact that employees may be given a classifica- tion such as beginner, trainee, or probationary employee, and the contemplation of permanent tenure is subject to a satisfactory completion of an initial trial period, has been held by the Board not to warrant their exclusion from the unit.3 We, also, conclude that, while the trainees in the present case are paid at a lower hourly rate and do not receive fringe benefits during the training period, under the circumstances shown they are not lacking in suffi- cient community of interest with the employees of the service and spring departments to warrant their exclusion from the unit.4 We have carefully consid- ered the Employer's argument that these trainees do not have reasonable expectancy of permanent employment by reason of the turnover resulting from stipulated by the parties . The Employer contends that the acting supervisor in the spring repair department also has supervisory authority as defined in the Act. The Regional Director made no determination with respect to the supervisory status of the acting supervisor but directed that he be permitted to vote subject to challenged ballot 3 David S Pearl and Ephraim Werner d/b/a National Torch Tip Company, 107 NLRB 1271 (1954), Gulf States Telephone Company, 118 NLRB 1039 (1957); Afro Jobbing & Manufacturing Corporation, 186 NLRB 19 (1970), Erie Marine Division, The Rust Engineering Company, 195 NLRB 815 (1972). 4 See The Sheffield Corporation, 123 NLRB 1454, 1457 (1959). 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quits and discharges during the training period. The -Board, however, has held: "We do not believe, as a matter of policy, that the eligibility of probationary .employees should turn on the proportion of such employees, who, willingly or not, fail to continue in the employ of the employer throughout the trial period. "5 The Employer ' has advanced no facts which persuade' us that the policy as to probationary employees-should not be applicable to the trainees in issue herein. - Accordingly, we hereby remand the case to the Regional Director for the purpose of conducting an election pursuant to his Decision and Direction of Election, except the payroll period for determining eligibility shall be that ending immediately preceding the issuance date of this Decision. [Excelsior footnote omitted from publication.] 5 N a t i o n a l T o r c h T i p C o m p a n y , s u p r a Extra! C o r p o r a t i o n , 1 I 1 NLRB 878 (1955).