The Northern Virginia Solid Waste Collection District Of Browning Ferris, Inc.

292 BROWNING FERRIS, INC. The Northern Virginia Solid Waste Collection Dis- trict of Browning Ferris, Inc. , and - Drivers, Chauffeurs, and Helpers Local Union- No., . 639 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen - and, Helpers "of America, Petitioner. Case 5-RC-12278- 26 April 1985 DECISION AND ORDER REMANDING TO THE REGIONAL DIRECTOR By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The National Labor Relations Board has consid- ered determinative challenges in an ' election' held 13 September 19841 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated. Election Agreement.2 The tally of ballots shows 47 for and 47 against the Petitioner, with 7 challenged ballots. , The Board has reviewed the record in light of the Employer's exceptions and brief and hereby adopts the hearing' officer's- findings, -conclusions, and recommendations only to the extent consistent herewith.3 The only issue raised by the exceptions is the dis- position-of Lawrence Good's challenged ballot. At the election, the Petitioner challenged the ballot of employee Good on the basis that he was a supervi- sor within the meaning of Section 2(11) of the Act .and/or does not share a community of interest with the employees in the stipulated unit. The hearing officer rejected the Petitioner's contention that Good was a statutory supervisor, but rather ex- cluded Good from the unit on the alternative basis argued by the Petitioner. The hearing officer found that Good's job duties, work area, supervision, compensation, prior supervisory service, uniform, and assigned parking space showed that Good did not share a community of interest with the unit em- ployees sufficient to warrant his inclusion in the unit. Thus, on the basis of a lack of community of interest, the hearing officer recommended that the challenge to Good's ballot be sustained. The Em- ployer has excepted to the findings concerning Good's lack of community of interest with other i All dates contained herein are 1984, unless otherwise specified 2 The unit is "All full-time employees including drivers, helpers, main- tenance employees and plant clericals employed by the Employer at its 2813 Juniper Street, Merrifield, Virginia location, but excluding sales em- ployees, parts employees, office clerical employees, guards and supervi- sors as defined in the Act " 9 In the absence of exceptions thereto, we adopt pro forma the hearing officer's finding that Good is not a statutory supervisor and his recom- mendations overruling the challenges to the ballots of Cybulski, Galla- gher, Richardson , and Williams, withdrawing the challenge to Wooten's ballot, and sustaining the challenge to Madigan's ballot unit employees. It further excepts to the hearing of- ficer's failure to 'overrule the' challenge to Good's ballot based on.the language of the stipulation. We find merit in the Employer's, first exception. Con- trary to the hearing officer, we find that his recom- mendation to sustain the challenge; to Good's ballot is not. in accord with the record evidence. Lawrence Good has been employed by the Em ployer for 15 years. For the past 5 years, he has occupied the position of dispatcher in the Employ- er's operations division. The' Employer's drivers and helpers also work in this division, as does the' operations- clerk who works along with Good in the-dispatch area. On 'occasion, the Employer's two swing drivers also perform, dispatching functions in the dispatch area. These other persons are all unit employees. During the course of the day, Good has frequent contact with the drivers. In the early morning, he distributes logs or route sheets to the drivers. Thereafter, in the -case of commercial driv- ers, after the 'completion, of their first two assigned stops which are noted-on their daily logs, Good in- forms them on a stop-by-stop basis' of their remain- ing assignments over the company radio or tele- phone. Good has similar contact with other drivers during the course of the day, with respect to extra and/or missed stops and. emergency stops 'as may be ordered by the Employer's customers. Like cer- tain uncontested unit employees, Good is salaried and has an assigned parking space. Although Good wears a different color uniform from other unit em- ployees, does not punch a timeclock,4 and has prior supervisory experience,5 he nevertheless shares similar fringe benefits and is subject to the same rules and policies as unit employees. It is well-settled law in a stipulated-unit election that "the Board's function is to ascertain the par- ties' intent with regard to the disputed employee."6 If the intent is "unclear or the stipulation ambigu- ous," then community-of-interest principles come into play.? The express language of the stipulation in this case does not include or exclude the classifi- cation of dispatcher. Accordingly, inasmuch as the intent of the parties is unclear-from the language of the unit description, the hearing officer properly utilized community-of-interest principles. However, based on the record evidence' discussed above showing that Good has daily contact with drivers, similar fringe benefits, and is subject to the same 4 The record does not indicate whether there are any other unit per- sonnel who do not punch the timeclock Neither does it indicate Good's wage rate vis-a-vis other employees 5 The record shows that Good became a dispatcher when his prior su- pervisory position was eliminated He suffered a reduction in pay upon assuming his duties as a dispatcher 6 Tribune Co, 190 NLRB 398 (1971) ' Viacom Cablevision, 268 NLRB 633 (1984) 275 NLRB No. 49 BROWNING FERRIS, INC rules and policies as unit employees , we find that Good in fact shares a community of interest with' unit employees and shall include him in the unit.' ORDER It is ordered that the Regional Director for Region 5, within 10 days from the date of this deci- sion, open and count the ballots of Pam Cybulski, Patrick Gallagher, William • Richardson, 'Robert .- i k -r 293 Lee Williams, Vincent Wooten, and Lawrnce Good and thereafter - prepare and cause t, be served on the parties a revised tally -of ballos, on which basis he shall issue the appropriate cerifica- tion. r IT IS FURTHER ORDERED that the above-titled matter is referred to the Regional Direcor for Region 5 for further processing consisteit here- with. - }