Lear Siegler

372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Safelite Industries Division of Lear Siegler and Gary Wheeler and Glaziers and Glassworkers Union Local No. 558. Case 17-RD-1062 16 December 1987 SUPPLEMENTAL DECISION AND ORDER REMANDING TO THE REGIONAL DIRECTOR BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered a determinative chal- lenge in an election held 20 March 1987 and the hearing officer's report recommending disposition of it. The election was conducted pursuant to a Stipulated Election Agreement. The revised tally of the ballots shows nine for and eight against the Union, with one challenged ballot.I The Board has reviewed the record in light of the Union's exceptions and brief and adopts the hearing officer's findings, conclusions, and recom- mendations. The sole issue before the Board is the disposition of Paul DeWitt's challenged ballot. At the election, the Board's agent challenged the ballot of DeWitt, who at the time was a manager-trainee, on the basis that he was not included on the eligibility list. The hearing officer recommended that the chal- lenge to DeWitt's ballot be overruled, finding that the parties did not express an intent either to in- clude DeWitt in the unit or to exclude him. The hearing officer then considered community-of-in- terest factors and found that DeWitt shares a com- munity of interest with the unit employees and therefore should be included in the unit. The Union excepts to the hearing officer's recommendations, asserting that the parties intended to exclude DeWitt from the unit and, as that intent was clear- ly expressed, that the hearing officer should never have reached the community-of-interest question, but instead should have sustained the challenge based on the parties' intent. The stipulated unit includes glass installers and shop managers.2 The parties stipulated that this ' The revised tally of ballots reflects the Board's 2 July 1987 unpub- lished Decision and Order sustaining the challenge to the ballot of Mat- thew Young, overruling the challenge to the ballot of David Emmett, and ordering that Emmett's ballot be opened and counted 2 The unit is described as follows All glass installers and shop manag- ers employed by Safelite Division of Lear Siegler, Inc , at its facilities lo- cated at 8042 Parallel Parkway, Kansas City, Kansas, 1547 Burlington, Kansas City, Missouri, 9204 E 350 Highway, Raytown, Missouri, 7953 Wornall Road, Kansas City, Missouri, 8702 Grant, Overland Park, Kansas, 5813 Reeds Road, Mission, Kansas, and 1732 Oak, Kansas City, Missouri , but EXCLUDING all office clerical employees, professional employees, guards and supervisors as defined in the Act unit has historically been recognized by the par- ties.3 They further stipulated that the Union was aware of DeWitt's employment but not necessarily aware of his job title. The parties agree that neither Paul DeWitt nor the manager-trainee position was ever discussed by the parties, either in the course of collective bargaining or pursuant to the parties' entering into the stipulated election agreement. The record shows that the Employer employs shop managers and glass installers at its various glass installation shops. The duties of the shop managers include answering the telephone, waiting on customers, preparing shop tickets and invoices, maintaining a daily log of jobs completed, main- taining an inventory of windshields, flat glass and parts, placing orders for parts with the Employer's warehouse, scheduling and coordinating the assign- ment of jobs to be performed, handling customer problems and complaints, and installing glass. The glass installers do only installation work. In September 1986 the Employer employed Paul DeWitt at its Raytown facility.4 It is unclear when the Employer officially classified DeWitt as a man- ager-trainee; however, sometime in October 1986 both DeWitt and Lester Saathoff, the shop manag- er at the Raytown facility, were aware that DeWitt's position was that of manager-trainee. Ini- tially DeWitt was trained to perform all the shop manager's paperwork duties. Sometime after the election was held, DeWitt began training for the glass installation work. When DeWitt was originally hired, he received a wage rate substantially lower than the wage rate of the shop managers and glass installers ($5.22 per hour versus about $10.72 per hour journeyman's rate, with the shop manager receiving additional pay above the journeyman's rate). DeWitt also re- ceived different benefits from those of the unit em- ployees, although Herb Conyers, the Employer's district manager, testified that the benefits were comparable. It is settled law that in a stipulated-unit election, "the Board's function is to ascertain the parties' intent with regard to the disputed employees." Tribune Co., 190 NLRB 398 (1971). If the intent is unclear or the stipulation ambiguous, the Board will then consider community-of-interest principles to determine whether the disputed employee be- longs in the unit. Viacom Cablevision, 268 NLRB 633 (1984). 3 It is unclear from the record whether a collective-bargaining agree- ment covering the unit employees was in effect 4 Prior to September 1986, DeWitt worked for the Employer at its construction glazing shop which the Employer closed around mid- August 1986 No employees at the Employer's glazing shop were ever included in the instant unit '287 NLRB No. 39 LEAR SIEGLER 373 The express language of the stipulation in this case does not specifically include or exclude the manager-trainee classification. Consequently, the hearing officer concluded that the parties did not express a clear intent with regard to the inclusion or exclusion in the unit of the manager-trainee posi- tion. The Union asserts, however, that because manager-trainee is not one of the classifications in- cluded in the unit description, and because it was not a classification historically included in the unit, the parties' intent that the manager-trainee position not be in the unit is clear. Thus, the Union asserts that there was no need to discuss DeWitt's status when the parties were discussing the election stipu- lation and, furthermore, that the Employer's failure to include DeWitt on the list of eligible voters af- firms that the parties' intent was clear. We find the Union's assertions unpersuasive. Ini- tially, we find that the failure to list the manager- trainee position as an included classification does not establish that the parties clearly intended to omit the classification. The unit description specifi- cally includes two classifications of employees and specifically excludes four classifications of employ- ees. With regard to the six classifications of em- ployees mentioned in the stipulation, the parties' intent is clear; however, as the express language of the stipulation does not include or exclude the clas- sification of manager trainee, their intent with regard to that position is not clear. Furthermore, the historical absence of the man- ager-trainee position from the unit also fails to es- tablish that the parties clearly intended to exclude the position from the unit. The manager-trainee po- sition was not created until September or October 1986, when DeWitt was hired for the position. The parties stipulated that neither DeWitt nor the man- ager-trainee position was ever discussed by the Union and the Employer. Contrary to establishing that the parties did not intend to include the posi- tion in the unit, this evidence indicates that the par- ties never addressed the issue. Finally, the failure to discuss DeWitt's status at the time the election stipulation was entered into and the Employer's failure to include DeWitt on the eligibility list also do not establish a clear intent by the parties to exclude the manager-trainee posi- tion from the unit. Rather, such occurrences can just as easily be explained by the parties' oversight. We find that it is not possible to ascertain the parties' clear intent with regard to whether the manager-trainee position is to be included or ex- cluded from the unit. Therefore, community-of-in- terest principles must be used to determine whether the manager-trainee position belongs in the unit. The evidence establishes that DeWitt performs the same duties as the shop managers. Like the shop managers and glass installers, he is hourly paid, receives his pay at the same time, works ap- proximately the same hours, punches the same timeclock, wears the same uniform, uses the same lunch area and restroom facilities, works under the same supervision, and spends a significant percent- age of his time interacting with the other unit em- ployees, both in the shop area and the customer waiting area. Furthermore, the duties performed by DeWitt are an integral part of the flow of bargain- ing unit work performed in the shop. We therefore find that DeWitt, as manager-trainee, shares a com- munity of interest with unit employees and shall in- clude him in the unit. ORDER It is ordered that the Regional Director for Region 17, within 10 days from the date of this de- cision, open and count the ballot of Paul DeWitt and thereafter prepare and cause to be served on the parties a second revised tally of ballots, on which basis he shall issue the appropriate certifica- tion. IT IS FURTHER ORDERED that the above-entitled matter is remanded to the Regional Director for Region 17 for further processing consistent here- with.