Liberty Coach Co., Inc.

National Labor Relations Board - Board Decisions

Feb 17, 1970

181 N.L.R.B. 182 (N.L.R.B. 1970)

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.