U.S. Pollution Control, Inc.

274 U.S. POLLUTION CONTROL, INC. U.S. Pollution Control, Inc. and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local No. 222, Petitioner. Case 27-RC-6554 29 January 1986 DECISION AND DIRECTION By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN The National Labor Relations Board, by a three- member panel, has considered objections to and de- terminative challenges in an election held on 11 July 1985 and the Acting Regional Director's report recommending disposition- of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows nine for and seven against the Petitioner, with three challenged ballots. The Board has reviewed the record in light of the exceptions 1 and brief and adopts the Acting Regional Director's findings and recommendations as modified below. Two of the three challenges were made by the Petitioner to the ballots of Randy Shephard and Royle Jensen. The Acting Regional Director sus- tained the challenge to, Randy, Shephard's ballot on the grounds that he was a supervisory, managerial, and/or a "full-time sales" employee.2 The Employ- er excepts to this finding, contending that She- phard is an employee who is properly included in the unit.3 We agree with the Acting Regional Director that the challenge to Shephard's ballot should be sustained, but we do so for the following reasons. Shephard is employed by the Employer at its Salt Lake City, Utah operation as a pollution con- trol specialist attached to its Special Services/Small Operator program. He is the only such specialist employed at the Salt Lake City operation. His job is to pick- up, manifest, and transport small quanti- ties of hazardous waste in Oklahoma, Idaho, Wyo- ming, and Utah, with most of his time being spent within 100 miles of Salt Lake City. In performing these duties, he drives a pickup truck. 1 The Employer excepts only to the Acting Regional Director's find- ings regarding the determinative challenges No exceptions were filed to, and we adopt, pro forma, the Acting Regional Director's dismissal of the objections. 2 The stipulated appropriate unit consists of "All employees employed by the Employer at its Salt Lake City and Grassy Mountain-Clove, Utah, facilities, BUT EXCLUDING all guards, office clericals, full-time sales- men, professional employees, and supervisors as defined in the Act " (Emphasis added) 8 No exceptions were filed to, and we adopt, pro forma, the Acting Regional Director's overruling of the Petitioner's challenge to Royle Jen- sen's ballot. When Shephard needs assistance in this work his first option is to contact his immediate supervisor- the Employer's Oklahoma City-based manager of Special Services, Charles Soukup-who will send Oklahoma City-based Special Services employees to assist Shephard if available. If no such employ- ees are available, Shephard's second option is to use one or both of two casual employees employed at the Salt Lake City operation. Both casuals were initially interviewed by Shephard who recommend- ed to Soukup that they be hired. Soukup subse- quently hired them after reviewing their employ- ment applications. If the casuals also are not avail- able, the job is abandoned or postponed; none of the full-time drivers or mechanics employed at the Salt Lake City operation are ever called upon to assist Shephard. Additionally, Shephard devotes approximately 50 percent of his time to sales-related duties, con- tacting existing and potential customers and re- sponding to their inquiries regarding the Employ- er's services. In this capacity, he also bids work for the Employer after consultation with Special Serv- ices supervision in Oklahoma City. Shephard is paid a monthly salary. Unlike other employees at the Salt Lake City operation, he does not punch a timeclock, is not paid overtime, and receives sick benefits. Unlike other employees, he also has an assigned office area. Based on the foregoing, contrary to the Acting Regional Director, we cannot conclude that She- phard is a supervisory, managerial, and/or a "full- time sales" employee. Although Shephard inter- viewed and recommended hiring the casuals who assist him, this does not necessarily constitute su- pervisory authority, particularly where, as here, Shephard's supervisor made the final hiring deci- sion after an independent review of 'the casuals' employment applications. Rather, the circum- stances indicate that Shephard's role was merely to ensure that he was personally compatible with those who would be hired to assist him.4 Nor does the fact that Shephard bids work for the Employer make him a managerial employee absent evidence that he exercises significant independent discretion and authority in doing so.5 Here, Shephard con- sults with corporate headquarters before making bids. Finally, Shephard is clearly not a "full-time sales" employee as he only spends approximately 50 percent of his time on sales-related duties. Nevertheless, it remains that Shephard spends approximately 50 percent of his time doing nonunit sales work and, as found by the Acting Regional 4 See, e g, Willis Shaw Frozen Foods Express, 173 NLRB 487 (1968) s See, e g., Bell Aerospace, 219 NLRB 384 (1975) 278 NLRB No. 42 U.S. POLLUTION CONTROL, INC. Director, does not share a community of interest' with unit employees. Thus, as outlined above, unlike unit employees Shephard does not punch a timeclock, is not paid overtime, and receives sick leave benefits. Further, Shephard's immediate su- pervisor is Special 'Services Manager Soukup, while all other Salt Lake City-based employees. are supervised by the terminal manager in Salt Lake City. Finally, unit employees are never called upon to assist Shephard, and Shephard never performs the work of the unit employees.6 Accordingly, we conclude that Shephard is properly excluded from the unit as a dual function employee who does not share a community of interest with unit employ- ees.7 The remaining ballot, that of Larry Bogue, was challenged by the Board agent who conducted the election on the grounds that his name did not appear on the eligibility list. Bogue was discharged by the Employer on 30 May 1985. A complaint subsequently issued in Case 27-CA-9270 alleging that his discharge violated Section 8(a)(1) and (3) of the Act. In view of this, the Acting Regional Director found that a recommendation as to Bogue's eligibility could not be made. However, during the Acting Regional Director's investiga- tion, Bogue executed an affidavit waiving his right to a secret ballot and requesting that his ballot be opened and counted to resolve the election, if pos- sible, without waiting for resolution of the unfair labor practice proceeding. The Acting Regional 6 Although there are drivers in the umt, they drive semitrailer trucks while Shephard drives pickup trucks 7 See Landing Construction Co., 273 NLRB 1288 (1984). 275 Director rooted that, assuming his recommendation to exclude Shephard was adopted, the Petitioner could lose the election only if Bogue was eligible and both he and Royle Jensen `voted against Peti- tioner. Accordingly, the Acting Regional Director concluded that opening and counting the chal- lenged ballots before resolution of Bogue's eligibil- ity was proper, albeit after commingling them in the interest of preserving the secrecy of both. We agree and shall so direct.8 DIRECTION Case 27-RC-6554 , is . remanded to the Regional Director for Region 27. The Regional Director shall commingle and open the ballots of Royle Jensen (the challenge to his ballot having been overruled) and Larry Bogue. The Regional Direc- tor shall determine if - any one of these, ballots is cast for the Petitioner. If so, and without issuing a revised tally of ballots, the Regional Director shall certify the Petitioner. If,' however, both ballots are cast against the Petitioner, the issue of alleged dis- criminatee Bogue's eligibility shall be consolidated with the hearing scheduled in= Case 27-CA-9270. If, upon the outcome of Case 27-CA-9L270, Bogue is found to have been lawfully terminated and thus ineligible to vote, the Regional Director shall certi- fy the Petitioner. If, however, Bogue, having voted against the Petitioner, is found .to have been unlaw- fully terminated and thus eligible to vote, the Re- gional Director shall certify the results of the elec- tion. 8 See Garrity Oil Co, 272 NLRB 158 (1984).