Liberty Coach Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 17, 1970181 N.L.R.B. 182 (N.L.R.B. 1970) Copy Citation 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Liberty Coach Company, Inc. and International Union of Electrical , Radio and Machine Workers, AFL-CIO. Cases 25-CA-2921 and 25-RC-3332 February 17, 1970 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 15, 1967, the National Labor Relations Board issued a Supplemental Decision and Certification of Representative in Case 25-RC-3332, in which the International Union of Electrical, Radio and Machine Workers, AFL-CIO, (the Union), was certified as the collective-bargaining representative of the production and maintenance employees of Liberty Coach Company, Inc. (the Employer), as the result of an election held on October 28, 1966. Thereafter, the Employer admittedly refused to bargain with the Union, asserting that the election proceeding had been defective in several respects. On August 1, 1968, after a hearing on a complaint issued by the General Counsel, the Board issued a Decision and Order finding that the Employer had violated Section 8(a)(5) of the National Labor Relations Act, as amended, by its refusal to bargain, and had also committed certain violations of Section 8(a)(l) and (3). The Employer was ordered to cease and desist from committing such violations and to take appropriate remedial action.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. Thereafter, on petitions for review by the Union and the Employer and cross-application for enforcement by the Board, the United States Court of Appeals for the District of Columbia enforced that part of the Board's Decision and Order relating to the 8(a)(1) and (3) violations, but remanded the 8(a)(5) portion of the case for further proceedings.' We discuss below the sequence of facts which resulted in the remand. In the stipulated election held on October 28, 1966, the tally of ballots showed a count of 94-94, with 2 ballots (cast by garage mechanics Timmons and Kleinknight) challenged. The stipulation upon which the election was premised read: All production and maintenance employees of the Employer at its Syracuse, Indiana, establishment: But excluding all office clerical employees, all mobile home haulaway truck drivers, guards, and all professional employees and supervisors as defined in the Act. 1172 NLRB No 154 2418 F 2d 1191 (C A D C ) In ruling on the challenges, the Regional Director held that it was unclear whether the stipulation was intended to apply to the two mechanics, who worked in a garage about three-fourths of a mile from the Respondent's factory. Finding ambiguity in the stipulation, the Regional Director proceeded to determine whether it was appropriate to include the two mechanics in the unit on the basis of the unit factors, to be discussed in more detail later. He concluded that they did not share a community of interests with the production and maintenance employees, and he recommended that their ballots not be counted. On exceptions by the Union, the Board reversed. Without directly ruling on the Regional Director's determination of the appropriateness of inclusion of the two mechanics, the Board inferred, from a single fact, an intent to include the mechanics in the stipulated unit. That fact was the manner in which the Union's original petition was revised into the completed stipulation. The petition had read: All production and maintenance employees at the Company's plant in Syracuse, Indiana, and excluding all truckdrivers, guards, professional, technical, and salaried employees, and supervisors as defined in the Act, [Emphasis supplied ] The Board reasoned that by broadening the word "plant" in the petition to "establishment" in the stipulation, and by narrowing "all truckdrivers" in the petition to "mobile home haulaway truckdrivers" in the stipulation, the parties displayed an intention to cover the entire business unit of the Employer, including the garage, and to exclude only the narrow categories of employees specified. Finding the inclusion of the mechanics to be not "inherently inappropriate as a matter of law," the Board ordered the two ballots opened. In his report, the Regional Director had found that the parties had never discussed the placement of the two mechanics prior to the preelection conference (at which time the Union contended, and the Employer denied, that they were eligible to vote), and that the Employer had omitted their names from the eligibility list, without union protest until the preelection conference. In a motion for reconsideration, the Employer referred to these findings and complained that the Board was inferring intent without considering all of the evidence relevant to that fact. It mentioned (1) the Regional Director's finding that the parties had failed to discuss the mechanics at the time the stipulation was agreed to; (2) the Regional Director's finding as to the unprotested omission of the employees from the eligibility list submitted by the Employer; and (3) an allegation that, before the petition was filed, a union agent had talked to Timmons and Kleinknight, the mechanics, and told them that they would be included in the unit if the haulaway truckdrivers, on whose trucks the mechanics worked most of the time, were also included. (The haulaway drivers, as noted, were 181 NLRB No. 32 LIBERTY COACH COMPANY, INC. 183 stipulated out of the unit .) The Board denied the motion for reconsideration. The Regional Director opened the ballots as instructed and found two "Yes" votes . He also found that Timmons' name was written on the challenge envelope itself , as well as on the stub, and that two corners had been torn off of Kleinknight's ballot . The Regional Director held that the appearance of Timmons ' name on the envelope did not interfere with the secrecy of the ballot, and he counted Timmons ' vote. Since this gave the Union a one-vote margin , he found it unnecessary to consider the validity of Kleinknight's ballot . The Regional Director recommended certification , and the Board adopted his recommendation , over the Employer's exceptions. As previously indicated , the Employer refused to bargain , challenging the representation proceeding, and the Board found the 8 (a)(5) violation alleged by the General Counsel. On appeal , the Court of Appeals for the District of Columbia held that the stipulation itself was "patently ambiguous" as to the inclusion or exclusion of the mechanics , and that , therefore, the Board 's resort to extrinsic evidence of the intent of the parties was proper . The court held, however, that the Board erred in considering only the modifications of the petition in order to determine the intent of the parties . The court cited the evidence alleged by the Employer in its motion for reconsideration in the representation case - the absence of negotiation about the mechanics; the allegation that a union agent said that Timmons and Kleinknight would be excluded if the haulaway drivers were; and, "most significant ," the omission of the mechanics from the eligibility list furnished by the Employer 3 weeks before the election, without objection by the Union until the preelection conference. The court stated that these "allegations, if believed , would impressively support a conclusion that the original intendment of the parties was to exclude the garage mechanics ." The court further noted: We need not , and do not , hold that if the company's allegations are true the Board must conclude that the parties intended to exclude Timmons and Kleinknight . Rather we hold that, if those allegations are true , the Board could not reasonably conclude on the whole that the intent was to include the mechanics. There remains the third possibility - a determination that the evidence is inconclusive on the question of the intent of the parties, so that a de novo approach to the appropriateness of including the disputed employees within the unit must be made. This was the line taken by the Regional Director , and the Board has not yet considered his recommendation that Timmons and Kleinknight should be excluded from the unit on a de novo determination of appropriateness. The court also held that the Regional Director and the Board erred in failing to apply the proper standard to the validity of marked ballots - "a marking which appears to have been deliberately made and which may serve to identify the voter renders the ballot void " - and ordered that, if the Board reached the question , it would have to consider whether it appeared that Timmons and Kleinknight themselves marked their envelope and ballot and whether they did so with an intention to identify themselves. As discussed above , the court recited three items alleged by the Employer which , if found as fact, would , in the court ' s view , preclude the Board from finding that the parties had intended to include the two mechanics in the unit . One of these matters - that the parties had not discussed the status of the two mechanics until an hour before the election - was recited as a fact by the Regional Director in his first report in the representation case and was not specifically challenged at that time by the Union. The second issue mentioned by the court - the alleged statement by a Union agent that the mechanics would be included if the haulaway drivers were - was an allegation contained in the Employer ' s motion for reconsideration and was not passed on by the Regional Director . The third issue, termed "most significant" by the court - the Employer ' s omission of the two mechanics from the eligibility list - was stated in the Regional Director ' s report and was not factually disputed by the Union in its exceptions. At different points in the representation proceeding , decisions were rendered which were adverse to the respective positions of both the Employer and the Union on the subject of the unit status of the mechanics , and on each occasion, the aggrieved party challenged the adverse decision. When the Regional Director originally found that the mechanics should not be included , the Union protested to the -Board that it had intended to include them , but, as supporting evidence of its avowed intention , essentially mentioned only the changes between the petition and the stipulation. When the Board reversed the Regional Director, on the basis of the modifications of the petition, and ruled that the mechanics should be included, the Employer was then put in a position to argue that- the parties had not intended to include the mechanics . It did so, as discussed above, chiefly by proffering three items of evidence which, it contended , proved that the parties did not intend to include the mechanics in the unit . Of these three items, two of them - that the parties had not discussed the mechanics prior to the preelection conference , and that the Employer had omitted them from the eligibility list which it submitted prior to the preelection conference - had been found as fact by the Regional Director and were not explicitly disputed by the Union in excepting to the Regional Director' s report. Weighing these 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undisputed facts, which favor the Employer's position, together with the inference favorable to the Union that can be drawn from the modifications of the petition, it appears to us that the evidence presently before us is, in the court's word, "inconclusive" on the question of the intent of the parties as to the status of the two mechanics. Furthermore, thus far in this proceeding, each party has been in a position in which it would undoubtedly have alleged any probative evidence supportive of its contention on the issue of intent. From the nature of the allegations so made by each of them, it appears that a hearing in this case would produce no evidence which could lead us to appraise the state of the evidence as other than inconclusive.' The court has instructed that, should we determine that the evidence is inconclusive on the question of the parties' intent, we must then undertake a ' "de novo approach to the appropriateness of including the disputed parties within the unit ." The Regional Director originally employed such an approach in his report, and he decided that Timmons and Kleinknight did not share a sufficient community of interest with the other employees to warrant including them in the same voting unit. As earlier discussed, the Board's decision did not directly consider this conclusion, noting merely that inclusion of the mechanics would not be "inherently inappropriate as a matter of law." We now pass to consideration of the evidence presently before us on the subject of the community of interest enjoyed by the two mechanics' and the other employees in the production and maintenance unit. The Regional Director, made the following findings about Timmons and Kleinknight: Timmons and Kleinknight are the only garage mechanics employed by the Employer. Their place of work is located in a separate building, about 3/4 of a mile from the main plant and about 1/2 mile from the haulaway area, which is itself about 1/2 mile from the main plant. They service, maintain and repair the Employer's haulaway trucks and are under the direct supervision of the dispatcher,' who maintains his office at the haulaway area and also is the immediate supervisor of the truckdrivers who were excluded from the unit by the parties. The dispatcher has no supervisory authority over any production employees. 'We note that the only substantial evidentiary allegation which has not been virtually conceded relates to the Employer 's claim, not discussed in the Regional Director's report , that, prior to the election, a union representative told the two mechanics that they would be excluded from the unit if the mobile home haulaway drivers were Since the latter employees were eventually excluded from the unit , this evidence as to the Union's intent would , if proved , lend substance to the Employer's claim that the Union had no intention of including the mechanics . In view of our ultimate disposition of the case , however, it is unnecessary to resolve the validity of this allegation at a hearing Timmons and Kleinknight punch a time clock located at the garage, rather than the ones located at the main plant which are used by the production employees. They are carried on the administrative payroll, rather than the factory payroll which covers all production and maintenance employees. The mechanics are paid $3.25 per hour and do not participate in the production bonus, whereas production employees are paid $2.40 per hour and share in the bonus. The plant maintenance man, who voted unchallenged, receives $2.70 per hour and shares in the bonus. The haulaway truckdrivers do not share in the bonus and are paid on a mileage basis. The garage mechanics did not receive the pay increases granted to production employees in March and September 1966, and their pay week ends on Thursday, while the plant pay week ends on Sunday. All employees, including the mechanics, receive the same vacation, paid holiday and insurance benefits. Aside from the fact that on one occasion in early 1965 a plant maintenance man worked in the garage for approximately 3 weeks while a mechanic was off sick, there has been no interchange of employees between the main plant and the garage. The mechanics buy small parts, as needed, at their discretion, subject to review by the Employer's accounting department; maintain a running inventory of parts stocked; and are the only employees with keys to the garage. No production employees perform garage work, nor do the mechanics perform any production work. Petitioner asserts that the mechanics have continuing contact with main plant employees, since they allegedly repair and maintain forklifts and other inplant vehicles, both at the plant and at the garage. Petitioner also alleges that the garage men frequently visit the main plant and thus have considerable contact with production employees. The evidence shows that the garage men have indeed visited the main plant on many occasions to pick up automotive parts delivered to the plant. However, these routine visits to pick up parts are clearly incidental to the work performed at the garage and closely related thereto. There is no evidence that the mechanics repair any fixed production machinery. Throughout the entire year of 1966 until the present the Employer has had a continuing maintenance contract with a private concern covering repair and maintenance of forklifts. A review of the repair orders covering all work performed by the garage mechanics from January 1 through October 29, 1966, indicates that of 4,248 total hours worked by the garage mechanics, 173.5 hours were devoted to the repair and maintenance of service trucks, company owned farm tractors, delivery vans, the Employer's pickup truck, and forklifts. Both Timmons and Kleinknight state that about 95 LIBERTY COACH COMPANY, INC. 185 percent of their time prior to the election was spent working on haulaway trucks at the garage and the records so reflect. Inasmuch as the garage is a separately located and distinct operation from the plant; the mechanics are separately supervised; there is no interchange with production and maintenance personnel; the mechanics do not share in the production bonus or perform work directly related to production; they have a different pay week; their function is part of the Employer's distribution system; and their work and interests are separate and distinct from those of the production and maintenance employees; I conclude that the garage mechanics should be excluded from the unit set forth in footnote 1 of this report, and recommend that the challenges to their ballots be sustained. E.H Koester Bakery Co , nc., 136 NLRB 1006, 1013; Gunzenhauser Bakery, Inc., 137 NLRB 1613, 1617; May .Department Stores Company d/b/a Famous-Barr Company, 153 NLRB 341,345. In its exceptions to the Regional Director's report, the Union alleged the following additional facts. Prior to 1964, some of the work now performed by the garage mechanics was performed by a maintenance man, Otis, who is presently in the production and maintenance unit. The maintenance man did all repair work on the Employer's pickup truck, van trucks, farm tractors and forklifts, and light repairs on the mobile haulaway trucks, but any major repairs needed on the latter were subcontracted to a private garage. (This latter work is now what the two mechanics spend most of their time performing.) The Employer rented the garage six-tenths of a mile away from its plant in 1964, and located Matthews, a former production employee, in the garage. Otis helped to prepare the garage for operation, and, in February 1965, took over for Matthews for 4 weeks when the latter was ill. Kleinknight was hired in October 1964. The Union conceded that Kleinknight has a supervisor separate from the production and maintenance employees, but alleged that "many matters concerning his job functions are taken by him directly to" the assistant to the secretary-treasurer, and Kleinknight "upon occasion . . . may" discuss job matters with the secretary-treasurer, who has supervisory authority over all employees. The Union conceded that the mechanics perform: most of their functions in the garage. However, it alleged that, of the 27.5 hours spent by the mechanics working on forklifts, the mechanics go into the plant to perform such repairs "when it is impractical for the forklift truck drivers to deliver the equipment to the garage." When van repairs are needed, the van trucks are driven to the garage by a driver in the production and maintenance unit. The same is true of necessary repairs on the pickup truck and the five farm tractors. The above constitute the only factual allegations made by the Union in its exceptions to the Regional Director's report finding no community of interest between the mechanics and the unit employees. In answer to the Union, the Employer supported the Regional Director and also asserted that the garage was established to perform major work on the large mobile home haulaway trucks; that Timmons and Kleinknight were hired because they had previously owned and operated their own businesses (in fact, the Employer had allegedly dealt with them in the past when they were independent businessmen); that they often worked in excess of 80 hours per week each; that they pledged credit at the garage in amounts approaching $40,000 a year for parts (through October 1966-$26,000); that they determined what was needed, where to buy it, and how' much to pay; that they were responsible for all records and paperwork at the garage; and, because of all the above, that their managerial, clerical, purchasing, and discretionary duties involved a very substantial portion of their time, and they should be called "garage operators," not "mechanics."4 It thus appears that the Union's exceptions took no real issue with the Regional Director's factual findings. Assuming that only the content of those exceptions would be proved, a hearing would not yield much more than what the Regional Director found, except, perhaps, for more specific findings on what appears to be the minimal contact between the mechanics and possibly 14 truckdrivers in the 190 man production and maintenance unit, and on the amount of contact between the two mechanics and the secretary-treasurer, who stands in a supervisory position over all company employees. In view of this, we believe the state of the present record to be an adequate basis for determining the appropriateness of the inclusion of the mechanics in the unit. In our opinion, and assuming arguendo the truth of the allegations contained in the Union's exceptions, the Regional Director's conclusion that the mechanics should not be included in the unit is a correct determination. The separate interests of these mechanics and those of the employees in the production unit are apparent from the Regional Director's recital of the facts, and we adopt his reasoning for concluding that the mechanics are not appropriately included in the unit. We find, therefore, that the challenges to the ballots of Timmons and Kleinknight should be sustained. Since the tally of ballots, without the 2 challenged ballots, showed that 94 votes were cast for and 94 against the Union, the Union has failed to receive a majority of the votes cast. Accordingly, we shall amend our certification of the results of the election, previously issued in the representation proceeding, and our order previously issued in the complaint proceeding, to reflect our conclusion that The Regional Director's Report had found no supporting evidence that the mechanics constituted "management , clerical , confidential, and security" employees , as contended to him by the Employer 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union was not selected by the employees as their majority representative on October 28, 1966, and that the Employer did not violate Section 8(a)(5) by refusing to bargain with the Union thereafter. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that , in the election held in Case 25-RC-3332 on October 28, 1966, in the unit hereinabove described , a majority of the valid ballots cast were not in favor of International Union of Electrical, Radio and Machine Workers, AFL-CIO , and that the said Union is not the exclusive representative of the employees in the unit found appropriate within the meaning of Section 9(a) of the Act. The Certification of Representative issued by the Board on August 15, 1967, is hereby revoked. SUPPLEMENTAL ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby reaffirms as its Order the Order issued by it in Case 25-CA-2921, published at 172 NLRB No. 154 , as modified herein , and orders that the Respondent , Liberty Coach Company, Inc. Syracuse, Indiana , its officers , agents, successors, and assigns, shall take the action set forth in that Order , as so modified: 1. Delete subparagraphs 1(a) and 2 (a) of the Order , and redesignate the succeeding subparagraphs accordingly. 2. Delete the first , seventh , and eighth indented paragraphs of the Appendix attached to the Order. Copy with citationCopy as parenthetical citation