MDS Courier Services

MDS COURIER SERVICES. INC. MDS Courier Services, Inc. and Freight, Construc- tion, General Drivers, Warehousemen & Helpers, Local 287, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 32-RC-345 May 18, 1979 DECISION AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 32 on June 7, 1978, an election by secret ballot was conducted on June 30, 1978, under the direction and supervision of said Regional Director. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that, of approximately 32 eligible voters, 30 cast ballots, of which 12 were for and 8 against the Petitioner, and 10 were challenged. The challenged ballots were suffi- cient in number to affect the results of the election. Timely objections to conduct affecting the results of the election were filed by the Employer. In accordance with the National Labor Relations Board Rules and Regulations, series 8, as amended, the Regional Director conducted an investigation and, on September 7, 1978, issued his Report on Ob- jections and Challenged Ballots, order, and notice of hearing, in which he recommended that the objec- tions be overruled in their entirety and ordered that a hearing be held to resolve the substantial and mate- rial factual issues raised with respect to the 10 chal- lenged ballots. Inasmuch as no exceptions were filed to the Regional Director's report and no request for special permission to appeal from his order was filed by any party, the Board, by an Order dated Septem- ber 27, 1978, adopted the Regional Director's recom- mendations with respect to the objections and or- dered that a hearing be held with respect to the 10 challenged ballots. Thereafter, a hearing was held be- fore Hearing Officer Bernard T. Hopkins for the pur- pose of resolving the issues raised by the challenges to the ballots of Rod Yamasaki, Karl Roth, Mike King, Frank Castillo, Jose Villareal, Helen Holland, Ruth Kellogg, Beatrice Obergon, Gorge Obergon, and Do- lores Ross. The hearing was conducted in accordance with the provision of Section 102.69(e) of the Board's Rules. All parties were represented and afforded full oppor- tunity to be heard, to present and examine witnesses, to introduce relevant evidence, and to make oral ar- guments during the course of the hearing. On January 4, 1979, Hearing Officer Hopkins is- sued and served on the parties his Report on Chal- lenged Ballots. In his report, the Hearing Officer rec- ommended that, based on the stipulation of the parties at the hearing, the challenge to the ballot of Ruth Kellogg be sustained and the challenges to the ballots of Rod Yamasaki, Karl Roth, Mike King, Frank Castillo, Jose Villareal, and Gorge Obergon be overruled. The Hearing Officer further recommended in his report that the challenges to the ballots of Do- lores Ross and Beatrice Obergon be overruled and the challenge to the ballot of Helen Holland be sustained. Thereafter, the Employer filed exceptions, with a sup- porting brief, limited to the recommendation that the challenge to Holland's ballot be sustained. The Em- ployer contends that Holland was not only classified as a driver but was performing the duties of a driver and that, pursuant to the agreement between the par- ties, she should be included in the stipulated unit of drivers. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the entire record in this case, including the Hearing Officer's Report on Chal- lenged Ballots and the Employer's exceptions and brief, and hereby adopts the findings,' conclusions, and recommendations of the Hearing Officer,' only to the extent consistent herewith. The parties stipulated, and we find, that the follow- ing employees constitute a unit appropriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time, in-house and outside service drivers of the Employer, as- signed to the Employer's San Jose terminal, in- cluding those drivers working in Salinas and Santa Maria, California; excluding all other em- ployees, office clerical employees, guards, and su- pervisors as defined in the Act. The Hearing Officer recommended sustaining the challenge to the ballot of Helen Holland on the ground that, although she and her husband were hired as a team with the understanding that they would share the work on each of the two routes they were assigned, Mrs. Holland did not ever perform I The Employer has excepted to certain credibility resolutions of the Hear- ing Officer. It is the established policy of the Board not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. The Coca- Cola Bottling Compan' of Merphis. 132 NLRB 481, 483 (1961 ); Sretch-Tex Co., 118 NLRB 1359. 1361 (1957). We find no sufficient basis for disturbing the credibility resolutions in this case. 2 In the absence of any exceptions thereto, we adopt proforma the Hearing Officer's recommendations with respect t, the remaining challenges. 242 NLRB No. 67 405 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any of the actual driving on either route and does not possess a driver's license. The Hearing Officer found that Mr. Holland actually drives the vehicle for both routes, while Mrs. Holland performs most of the car- rying of merchandise to and from the customers' places of business at the stops along the two routes and also fills out the time and mileage reports for both routes. The Employer contends that Mrs. Holland per- forms the functions of a service driver, inasmuch as she performs pickups and deliveries for customers. The Employer notes that at other terminals it has employees classified as drivers who do no driving, but makes pickups and deliveries while walking along a route to which they are driven by another employee. The Employer also argues that excluding Helen Hol- land from the unit of drivers would leave a residual unrepresented unit of one employee at this terminal. We find merit in the Employer's exceptions. It is well established under Board law that, "In stipulated unit cases, the Board's function is to ascer- tain the parties' intent with regard to the disputed employee and then to determine whether such intent is inconsistent with any statutory provision or estab- lished Board policy."3 There is no contention by any party in this case that the inclusion of Holland within the stipulated unit of drivers would be inconsistent with any statutory provision or Board policy. Thus, the only issue is whether the parties' expressed intent was to include Holland in the unit or not. Here, the clear and unambiguous intent of the par- ties, as expressed in the stipulation, was to include all "service drivers ... including those drivers working in .. Santa Maria . . ." in the unit. Since Mr. and Mrs. Holland were the only employees classified as drivers 3 The Tribune Company, 190 NLRB 398 (1971). See also J. Olson Machine Co., Inc., 196 NLRB 598 (1972); While Cloud Products, Inc., 214 NLRB 516 (1974). who were working in Santa Maria at the time the stipulation was signed and since the only job classifi- cation which was specifically excluded from the stipu- lated unit was that of office clerical employee, the parties clearly intended to include Helen Holland in the unit. Further, the parties could not have had any specific intent to exclude Helen Holland from the unit, despite the broad language in the stipulation ex- cluding "all other employees," where neither party was even aware at the time the stipulation was signed that Mrs. Holland did not actually drive a vehicle on her route.4 The absence of any intent to exclude Mrs. Holland is also indicated by the fact that her exclu- sion would leave a residual unit of one unrepresented employee who possesses no community of interest with the other excluded employees. Accordingly, in light of the clear intention of the parties to include Helen Holland in the stipulated unit and in view of the fact that she actually performs the duties of and is classified as a driver, we hereby overrule the chal- lenge to her ballot.5 DIRECTION It is hereby directed that the Regional Director for Region 32 shall, pursuant to the Rules and Regula- tions of the Board, within 10 days from the date of this Direction, open and count the ballots cast by Rod Yamasaki, Karl Roth, Mike King, Frank Castil- lo, Jose Villareal, Helen Holland, Delores Ross, Be- atrice Obergon, and Gorge Obergon, and thereafter prepare and cause to be served on the parties a re- vised tally of ballots and an appropriate certification. 'See Apple Tree Chevrole, Inc., 237 NLRB 867 (1978). See also Charlie Rossie Ford, Inc., 227 NLRB 565 (1976). 5 Chairman Fanning would also rely on the community of interest which Holland shares with the other drivers as an additional basis for overruling the challenge to her ballot. See his concumng opinion in The Tribune Com- pany, supra. 406