Pacific Lincoln-Mercury, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 901 (N.L.R.B. 1993)

901
312 NLRB No. 135
PACIFIC LINCOLN-MERCURY, INC.
1 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendations that the ballots of Robert Childs and Mike
Farrell be opened and counted.
2 Excelsior Underwear, 156 NLRB 1236 (1966).
3 The stipulated unit description reads in full as follows:
All full-time and part-time Service and Parts Department em-
ployees, including all automotive mechanics, technicians,
countermen, service porters/drivers, and shipping and receiving
employees employed at the Employer’s Seattle, Washington fa-
cility, excluding all office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act, and all
other employees.
4 See Southwest Gas Corp., 305 NLRB 542, 543 fn. 7 (1991)
(‘‘when parties stipulate to language that refers to objectively identi-
fiable divisions within an employer’s organization, they should be
bound by that objective description’’).
Moreover, we note that even if we were to find the objective in-
tent of the parties to be ambiguous, Pashby would still not be eligi-
ble to vote as a dual-function employee. Under the Board’s decision
in Berea Publishing Co., 140 NLRB 516, 518–519 (1963), a dual-
function employee who is ‘‘regularly employed for sufficient periods
of time [in unit work] to demonstrate . . . a substantial interest in
the unit’s wages, hours, and conditions of employment’’ is included
in the unit. The hearing officer determined that prior to the election
Pashby spent approximately 5 to 10 percent of his time performing
unit work. This is not sufficient to establish that Pashby is regularly
engaged in performing unit work within the meaning of Berea. See
Manhattan Construction Co., 298 NLRB 501, 502 (1990) (challenge
to Pepper’s ballot).
In agreeing with his colleagues on this point, Member Raudabaugh
notes that Pashby would not be eligible under the 50-percent test set
forth in Member Raudabaugh’s dissenting opinion in Avco Corp.,
308 NLRB 1045 (1992).
5 In the absence of exceptions we adopt pro forma the hearing offi-
cer’s recommendations that Objections 1, 2, and 3 be overruled.
Pacific Lincoln-Mercury, Inc. and International As-
sociation of Machinists and Aerospace Work-
ers, District Lodge 160, Local Lodge 289, AFL–
CIO, Petitioner. Case 19–RC–12664
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
determinative challenges in and objections to an elec-
tion held March 9, 1993, and the hearing officer’s re-
port recommending disposition of them. The election
was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 14 for and 12
against the Petitioner, with 3 determinative challenged
ballots.1
The Board has reviewed the record in light of the
exceptions and brief and has adopted the hearing offi-
cer’s findings only to the extent consistent with this
Decision and Order.
1. The Board agent challenged the ballot of Jeff
Pashby because his name was not on the Excelsior2 list
of eligible voters. The hearing officer found that
Pashby was eligible to vote as a dual-function em-
ployee and recommended that the challenge to his bal-
lot be overruled. The Employer excepts, contending
that Pashby is not a part of the stipulated unit and fur-
ther contending that Pashby is not properly includable
in the unit as a dual-function employee. We find merit
in the Employer’s exception.
In stipulated unit cases, the Board’s function is first
to ascertain the parties’ intent with regard to the dis-
puted employee and then to determine whether such
intent is inconsistent with any statutory provision or
established Board policy. Tribune Co., 190 NLRB 398
(1971). If the objective intent of the parties is ex-
pressed in the stipulation in clear and unambiguous
terms, the Board holds the parties to their agreement.
Gala Food Processing, 310 NLRB 1193 (1993), citing
Tribune Co., supra.
Here, the stipulated unit includes ‘‘[a]ll full-time and
part-time Service and Parts Department employees’’
and excludes ‘‘all other employees.’’3 It is undisputed
that Pashby is not part of the service and parts depart-
ment, but rather is employed as a mechcanic in what
is clearly identified in the record as a separate depart-
ment of the Employer—the used-car department. There
is no evidence that the parties intended to include
used-car department employees in the stipulated unit.
Therefore, we find that it was the clear intent of the
parties to confine the stipulated unit to service and
parts department employees and to exclude individuals
such as Pashby who work in other departments. We
also find that the exclusion of Pashby does not violate
any statutory provision or settled Board policy. Ac-
cordingly, we reverse the hearing officer and sustain
the challenge to Pashby’s ballot.4
2. The Petitioner filed four objections to the elec-
tion.5 Objection 4 alleges that Parts Manager Gary
Smith threatened and coerced employees by telling
them that if they voted for the Union, they would lose
their current wages, medical benefits, and retirement
benefits, and they would have to start from scratch.
Smith testified that in the course of a discussion
about the consequences of the Union winning the elec-
tion, he told employees, inter alia, that the starting
point of negotiations would be zero. Smith did not
controvert employees’ testimony that he drew a picture
of a zero with a line drawn through it to illustrate his
point. Based on this, without making any further credi-
bility determinations, the hearing officer recommended
that Objection 4 be sustained.
We cannot agree that this objection can be disposed
of in such a summary fashion. The hearing officer’s
approach overlooks substantial relevant testimony in
the record. For example, Smith also testified that he
told employees that ‘‘everything would go on the table
for some type of negotiation and it was not a guarantee
that you would not get more, less. It could go any
way.’’ The hearing officer failed to credit or discredit
this testimony, although elsewhere in his report with
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
respect to a different objection he found Smith to be
a candid witness.
In addition, the hearing officer failed to comment on
the testimony of employee Otto Hovorka who claimed
that Smith coupled his bargaining comment with what
would appear to be a clearly coercive threat of loss of
benefits. Thus, Hovorka testified that Smith said that
‘‘if you guys into union [sic] . . . you are going to
lose all your benefits and you are going to start from
scratch.’’
‘‘The Board has held that . . . ‘hard bargaining’
statements [such as ‘bargaining from scratch’] may or
may not be coercive, depending on the context in
which they are uttered.’’ Coach & Equipment Sales
Corp., 228 NLRB 440 (1977). What is missing from
the hearing officer’s report is a resolution of the con-
flicting testimony on the critical issue of the context
surrounding the statement in issue here.
Accordingly, if after the ballots of Robert Childs
and Mike Farrell are opened and counted, the Peti-
tioner has not received a majority of the ballots cast,
we direct that the hearing officer shall make further
credibility determinations and prepare a supplemental
report and recommendations based on those determina-
tions. The credibility determinations should specifically
address the testimony of employees Otto Hovorka,
Douglas Taylor, and Mike Farrell, as well as all the
testimony of Gary Smith in its entirety, concerning this
objection in order to determine exactly what Smith
said on what occasions and within what context.
ORDER
IT IS ORDERED that the Regional Director for Region
19 shall, pursuant to the Board’s Rules and Regula-
tions, within 14 days from the date of this Decision
and Order, open and count the ballots of Robert Childs
and Mike Farrell and cause to be served on the parties
a revised tally of ballots. Should the revised tally show
that the Petitioner has received a majority of the bal-
lots cast, the Regional Director shall issue a Certifi-
cation of Representative.
IT IS FURTHER ORDERED that should the revised tally
show that the Petitioner has not received a majority of
the ballots cast, the proceeding shall be remanded to
the hearing officer for additional findings in accord-
ance with this Decision and Order.
IT IS FURTHER ORDERED that the hearing officer
shall prepare and serve on the parties a supplemental
report and recommendation. Following service of the
supplemental report on the parties, the provisions of
Section 102.69 of the Board’s Rules and Regulations
shall be applicable.