Southwest Gas Corp.

542 305 NLRB No. 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The challenge to the ballot of Cody Payne was previously over- ruled in the Board’s unpublished Decision and Order issued on June 3, 1991, pursuant to the Regional Director’s recommendation. Fur- ther, at the hearing, the Petitioner withdrew its challenge to the bal- lot of Portia Pubins and, therefore, the challenge to her ballot is overruled. Also at the hearing, the parties stipulated that William Sproule was ineligible to vote in the election and, therefore, the chal- lenge to his ballot is sustained. 2 In the absence of exceptions, we adopt pro forma the hearing of- ficer’s recommendation to sustain the challenge to the ballot of Chris Lara and to overrule the Petitioner’s Objection 2. 3 The hearing officer found that Maria Flores was the senior cus- tomer representative (SCR) at the Grove district payment office (DPO) until November 1990 and was the SCR at the Glendale DPO on December 4, 1990, the date of the election. The Employer has excepted to the finding that Flores was the SCR at the Glendale DPO. In its answering brief, the Petitioner agrees with the Employer that the hearing officer erred in finding that Flores was the SCR at the Glendale DPO on the date of the election. Insofar as the parties, in their briefs, are in agreement that Flores was not the SCR at the Glendale DPO on the date of the election, we shall accept that as fact and thus we neither rely on testimony nor adopt the hearing officer’s finding to the contrary. Instead, we find that Flores was the SCR at the Grove DPO at all times material. Further, because we find that the record is devoid of evidence estab- lishing that any supervisor was daily assigned to the Grove DPO with Flores, we adopt the hearing officer’s finding that Flores worked in a DPO without a daily assigned supervisor. In this regard, we note that the Employer alleged in its brief that Supervisor Scott was daily assigned to the Grove DPO. The evidence offered by the Employer in support of this contention consists solely of testimony that alludes to Scott’s being ‘‘upstairs’’ in the Grove building (which includes not only the DPO, but also other offices). No direct evi- dence or testimony, however, supports a finding that Scott was daily assigned specifically to the Grove DPO. Accordingly, we affirm the hearing officer’s conclusion that, like other SCRs at DPOs without a daily assigned supervisor, Flores is a supervisor within the mean- ing of the Act and is ineligible to vote in the election. 4 The CAP employees whose ballots were challenged are: Ray Vorwerk, Arlette Waffensmith, Carol Corona, Mary Ann Permuda, Beverly Schneider, Robin Martin, and Marilyn Cooke. Sanford But- ler is the telecommunications employee. The Board agent conducting the election challenged the ballots of these CAP and telecommuni- cations employees because their names did not appear on the voter eligibility list. 5 The stipulated unit description is: All nonexempt employees working for the Employer in its Cen- tral Arizona Division; excluding exempt employees, professional employees, confidential employees, guards, watchmen and su- pervisors as defined in the Act. 6 The cases in this area have generally involved disputes over whether specific employees with job titles or duties not in conform- ance with the express job titles or descriptions in the unit description are eligible to vote notwithstanding the stipulation’s failure specifi- cally to include or exclude them. See Lear Siegler, 287 NLRB 372 (1987); C.K.E. Enterprises, 285 NLRB 975 (1987); Royal Laundry, 277 NLRB 820 (1985); Browning Ferris, Inc., 275 NLRB 292 (1985). In such cases, the Board finds that the objective intent of the parties is ambiguous and resorts to community-of-interest prin- ciples to resolve the challenge. Viacom Cablevision, 268 NLRB 633 (1984); White Cloud Products, 214 NLRB 517 (1974). The initial question to be resolved in all cases, however, is whether the intent of the parties is unambiguously manifested in the unit stipulation. Here the initial question to be resolved concerns the meaning of ‘‘All nonexempt employees working for the Employer in its Central Arizona Division . . . .’’ (Emphasis added.) Southwest Gas Corporation and Utility Workers Union of America, AFL–CIO, Petitioner. Case 28–RC–4890 November 6, 1991 SUPPLEMENTAL DECISION, DIRECTION, AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH The National Labor Relations Board, by a three- member panel, has considered determinative challenges and an objection to an election held December 4, 1990, and the hearing officer’s report recommending disposi- tion of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 287 for and 286 against the Petitioner with 14 challenged ballots,1 a number sufficient to affect the results. The Board has reviewed the record in light of the exceptions2 and briefs and has adopted the hearing of- ficer’s findings3 and recommendations only to the ex- tent consistent with this Supplemental Decision, Direc- tion, and Order. In resolving the challenges to the ballots cast by seven customer accounts processing (CAP) employees and one telecommunications employee,4 the hearing officer found that the unit description5 was ambiguous and thus that the objective intent of the parties was un- clear. Accordingly, he applied traditional community- of-interest principles and concluded that these eight employees were eligible to vote. The Employer has ex- cepted to this finding arguing, inter alia, that the unit description is unambiguous and refers only to the em- ployees who work in the Employer’s operating divi- sion known as the Central Arizona Division. We find merit in this exception. It is undisputed that the Employer is organized into six distinct operating divisions, one of which is ex- pressly identified as the Central Arizona Division. The remaining five divisions are the Southern Arizona Di- vision, the Southern California Division, the Southern Nevada Division, the Northern Nevada Division, and the Systems or Staff Division. The Systems Division, which is a corporatewide division responsible for all systemswide functions, is headquartered in Las Vegas, Nevada, and has satellite offices in Phoenix, Arizona. It is further undisputed that the CAP and telecommuni- cations departments, regardless of geographical loca- tion, are encompassed operationally within the Systems Division. In resolving challenges to ballots of disputed em- ployees in stipulated unit elections, the Board will look to the parties’ intent as objectively manifested and, when such an intent is clear, ‘‘the Board will hold the parties to their agreement.’’ Viacom Cablevision, 268 NLRB 633 (1984).6 Here, the hearing officer found the 543 SOUTHWEST GAS CORP. 7 The hearing officer stated that the ‘‘Board bases its approach in determining the objective intent on an expectation that a petitioner is knowledgeable as to the job titles used in the description, but not on a petitioner’s knowledge of an employer’s organizational chart and divisional structure.’’ (Emphasis added.) He cited no authority for this proposition. In any event, when parties stipulate to language that refers to objectively identifiable divisions within an employer’s organization, they should be bound by that objective description. 8 Petitioner suggests that the intent we discern in the unit descrip- tion would be clearer if it referred to ‘‘All nonexempt employees em- ployed by the Employer’s Central Arizona Division,’’ or ‘‘All non- exempt Central Arizona Division Employees.’’ (Petitioner’s empha- sis.) 9 Because we find that the intent of the parties is clear and that the stipulated unit description is unambiguous, it is unnecessary for us to pass on the hearing officer’s community-of-interest analysis. stipulated unit description ambiguous because it did not contain job titles or descriptions and because it re- ferred ‘‘to a geographically-based division within the Company using broad, imprecise, inclusive language’’ (presumably the language ‘‘nonexempt employees working for the Employer in its Central Arizona Divi- sion’’). We do not agree with the hearing officer’s findings. In finding the unit description ambiguous, the hear- ing officer initially relied on the fact that the stipula- tion does not include specific job titles or descriptions. If that view prevailed, whenever a stipulated unit de- scription lacks specific job titles or descriptions it would be per se ambiguous. The Board, however, has not established such a per se approach, and we decline to do so here. Rather, the Board looks simply at whether the parties’ objective intent concerning the questioned portion of the unit description is unambig- uously manifested in the express language of the de- scription. Viacom Cablevision, supra. In the instant case, we find that despite the absence of job titles or descriptions in the stipulation, the reference to ‘‘non- exempt employees working in the Central Arizona Di- vision’’ refers to an identifiable, specific employee group, i.e., those who work within that named division and who are not employed within that division in one of the excluded categories or classifications. That being so, we find that the parties’ objective intent is clear with respect to the unit’s composition.7 The hearing officer also appears to have based his finding of ambiguity on the fact that, given its lack of job descriptions, the stipulation could be construed as referring to any employees working within the central Arizona geographic area, whether or not they work in the operational division specifically titled the ‘‘Central Arizona Division.’’ He finds this ambiguity in the lan- guage ‘‘employees working for the Employer in the Central Arizona Division.’’ Petitioner reiterates this ar- gument in its answering brief to the Employer’s excep- tions, arguing that the parties could have chosen alter- native language that would more clearly indicate that the description referred only to employees employed in the organizational division rather than in a geographic area. We disagree. First, given that the phrase ‘‘Central Arizona Divi- sion’’ is capitalized, we fail to see how this clear use of the name of the Employer’s organizational division could be mistaken for a generalized reference to the geographic area of central Arizona. That the Central Arizona Division, like four other of the Employer divi- sions, is identified in geographic terms and operates in a definable geographic area does not make it any less a separate, identifiable division with designated func- tions and employees who carry out their respective specified duties within the division’s structure. Indeed, it is every bit as much a division as is the Systems Di- vision, which has no geographical reference in its name and which is companywide in scope and func- tion, albeit subdivided into main and satellite offices. We also note that the construction urged as a possi- bility by the hearing officer and the Petitioner would conceivably include any employee of the Employer (other than those in the excluded classifications) from any of the organizational divisions who happened to have a job assignment in Arizona. Such an interpreta- tion of the unit description is simply untenable. As to the Petitioner’s argument that the possibility of clearer alternative language shows the unit description to be ambiguous, we fail to see how the examples proffered by the Petitioner make the intent any clearer than it al- ready is.8 Consequently, we find that the term ‘‘Central Ari- zona Division’’ has no independent geographic mean- ing outside the context of the Employer’s organiza- tional structure and, therefore, that it was the clear in- tent of the parties to confine the scope of the stipulated unit wholly to Central Arizona Division employees, excluding employees who work in other divisions but are based in Arizona. Accordingly, we reject the hearing officer’s finding that the unit is ambiguous because it is too ‘‘broad, imprecise, [and] inclusive,’’ and we hold the parties to their stipulation.9 Therefore, because the challenged CAP and telecommunications employees are employed in the Systems Division, a different division from the one identified in the stipulation, the challenges to their ballots are sustained. DIRECTION IT IS DIRECTED that the Regional Director shall, within 10 days of from the date of this Decision and Direction, open and count the ballots of Payne and Pubins and prepare and serve on the parties a revised tally of ballots. Thereafter, the Regional Director shall issue the appropriate certification. 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER IT IS ORDERED that this proceeding is remanded to the Regional Director for further action consistent with this Supplemental Decision, Direction, and Order.