Mccleary Brothers, Inc.

MCCLEARY BROS 753 McCleary Brothers, Inc. and Local Union No. 677, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Petitioner. Case 39-CA-742 22 October 1987 DECISION AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CP:ACRAFI' The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held 28 April 11987 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows four for and three against the Petitioner, with three challenged ballots, a sufficient number to affect the results. The Board has reviewed the record in light of the exceptions' and brief and adopts the hearing officer's findings and recommendations only to the extent consistent with this decision. The employer operates a combined ready-mix concrete and quarry operation. The challenged voter, A. Mariani, drives a Euclid truck, which is a large dump truck, in the quarry area. The Employ- er owns two Euclids and employs two Euclid truck drivers. The Union challenged Mariani on the ground that he was an equipment operator rather than a driver and thus is not in the stipulated unit which includes: All drivers and dispatchers employed by the employer at its Waterbury, Connecticut loca- tion; but excluding all other employees, all office clerical employees and guards, profes- sional employees and supervisors as defined in the Act. I In the absence of exceptions the Board adopts, pro forma, the hear- ing officer's recommendation that the challenges to the ballots cast by G Radocchio and P Angelicola be overruled and that their ballots be opened and counted In light of our decision we find it unnecessary to pass on the Employer's motion to open and count the ballots of Radoc- chio and Angelicola and rule on the third challenged ballot only if it is determinative The hearing officer recommended that the chal- lenge to Mariani be sustained. He found that the parties' intent was ambiguous because the stipulat- ed unit did not mention Euclid drivers, because there was no job title or description, and because the parties had not unambiguously "memorialized" their understanding of the job function. He then applied community-of-interest factors to reach his conclusion that Mariani did not share a community of interest with the other unit members. The Em- ployer excepts, contending that the intent of the parties is clear: the unit was to cover all drivers, including Euclid truck drivers. We agree. The language of the stipulation clearly states "All drivers . . . ." The testimony of the parties makes it equally clear that a Euclid is a large dump truck which is driven. There is no evidence that the operation of a Euclid truck requires any skills other than those required of all unit drivers. Fur- thermore, the Employer's president's undisputed testimony reveals that before the stipulation was entered into, he met with Rosengal, the Teamsters' business agent, who specifically told him that the Teamsters would represent Euclid drivers. In fact, Rosengal left two collective-bargaining agreements with the Employer and both specifically included Euclid drivers under scope of employment. Finally, we note that the other Euclid truck driver, whose name also appeared on the Excelsior list, voted in the election without challenge. Accordingly, we find that the stipulation is not ambiguous and the challenge to the ballot of A. Mariani is overruled and the ballot should be opened and counted.2 DIRECTION It is directed that the Regional Director open and count the ballots of Gary Radocchio, Phil An- gelicola, and A. Mariani, and thereafter prepare and serve on the parties a revised tally of ballots on the basis of which he shall issue the appropriate certification. 2 Based on the foregoing, we find it unnecessary to pass on the hearing officer's finding regarding the various community -of-interest factors. 286 NLRB No. 77