Butler Asphalt L.L.C.

National Labor Relations Board - Board Decisions

Feb 29, 2008

352 N.L.R.B. 189 (N.L.R.B. 2008)

BUTLER ASPHALT L.L.C.
352 NLRB No. 32
189
Butler Asphalt L.L.C. and International Union of
Operating Engineers Local 18, AFL–CIO, Peti-
tioner. Case 9–RC–18130
February 29, 2008
DECISION AND DIRECTION
BY MEMBERS LIEBMAN AND SCHAUMBER
The National Labor Relations Board has considered
determinative challenges in an election held on April 10,
2007, and the hearing officer’s report recommending
disposition of them.1 The election was conducted pursu-
ant to a Stipulated Election Agreement. The tally of bal-
lots shows 4 votes for and 6 votes against the Petitioner,
with 7 challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the hearing officer’s
findings and recommendations only to the extent consis-
tent with this decision.
I. BACKGROUND
Butler Asphalt L.L.C. (Employer) is an asphalt paving
contractor in the construction industry operating from a
facility located in Vandalia, Ohio. The Board election
was conducted in the following stipulated unit:
All heavy equipment operators employed by the Em-
ployer working out of its 7500 Johnson Station Road,
Vandalia, Ohio facility, but excluding all laborers,
truck drivers, office clerical employees, and all profes-
sional employees, guards and supervisors as defined in
the Act.
The Petitioner challenged the ballots of Travis Robin-
son and Mark Evans on the grounds that they are super-
visors. Near the close of the hearing, the Petitioner with-
drew its contention that Robinson and Evans are supervi-
sors, and now maintains that they must be excluded be-
cause they are laborers. The Board agent challenged the
ballots of Mike Craft, Bert Gogan Jr., Raymond Lawson,
Ricki Tucker, and Joseph Gisewite because their names
did not appear on the election eligibility list.2 The hear-
ing officer recommended that the challenges to the bal-
lots of Robinson and Evans be sustained, and that the

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
2 The parties and the Regional Director subsequently agreed not to
count Gisewite’s ballot.
challenges to the ballots of Craft, Gogan, Lawson, and
Tucker be overruled.
The Employer excepts to all of the hearing officer’s
recommendations. The Employer asserts that Craft,
Gogan, and Lawson are classified as laborers and Tucker
as a truckdriver, and thus all four are excluded from the
unit by the unambiguous language of the parties’ stipu-
lated election agreement. The Employer additionally
asserts that Robinson and Evans are classified as opera-
tors and thus unambiguously included in the unit by the
parties’ stipulation.
The Petitioner agrees with the hearing officer’s rec-
ommendations. It asserts that Craft, Gogan, and Lawson
spend a substantial amount of their worktime performing
the work of heavy equipment operators and thus should
be included in the unit. The Petitioner also asserts that
Tucker is a dual-function employee who shares a com-
munity of interest with other employees in the unit and
thus also should be included. As stated above, the Peti-
tioner asserts that Robinson and Evans are laborers and
therefore should be excluded from the unit.
For the reasons explained below, we find merit in the
Employer’s arguments concerning Craft, Gogan, Law-
son, Robinson, and Evans. As to these five employees,
we reject the hearing officer’s recommendations and find
that Craft, Gogan, and Lawson are excluded from the
unit, and Robinson and Evans included in the unit, by the
unambiguous language of the parties’ stipulated election
agreement. As to Tucker, however, we agree with the
hearing officer’s recommendation and find that he is
properly included in the unit based on community of
interest.
II. DISCUSSION
A. The Applicable Law
In determining whether an individual is included in a
stipulated unit, the Board applies a three-part test. Under
that test:
[T]he Board must first determine whether the stipula-
tion is ambiguous. If the objective intent of the parties
is expressed in clear and unambiguous terms in the
stipulation, the Board simply enforces the agreement.
If, however, the stipulation is ambiguous, the Board
must seek to determine the parties’ intent through nor-
mal methods of contract interpretation, including the
examination of extrinsic evidence. If the parties’ intent
still cannot be discerned, then the Board determines the
bargaining unit by employing its normal community-
of-interest test.
Caesar’s Tahoe, 337 NLRB 1096, 1097 (2002).
Where the parties’ intent can be ascertained, the Board
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD190
will give it effect unless it is “inconsistent with any statu-
tory provision or established Board policy.” Bell Conva-
lescent Hospital, 337 NLRB 191 (2001).
To determine whether the stipulation is clear or am-
biguous, the Board compares the express language of the
stipulated bargaining unit with the disputed classifica-
tion. Northwest Community Hospital, 331 NLRB 307
(2000). “The Board will find that the parties have ‘a
clear intent to include those classifications matching the
description and a clear intent to exclude those classifica-
tions not matching the stipulated unit description.’” Los
Angeles Water & Power Employees’ Assn., 340 NLRB
1232, 1235 (2003) (quoting Northwest Community Hos-
pital, supra). Where a stipulation expressly excludes a
classification, the Board will find a clear intent to ex-
clude it. See, e.g., White Cloud Products, 214 NLRB
516, 517 (1974). Where a stipulation neither includes
nor excludes a disputed classification, the Board will find
“that the parties’ intent with respect to that classification
is not clear.” Los Angeles Water & Power, supra. “The
Board bases this approach on the expectation that the
parties know the eligible employees’ job titles, and in-
tend their descriptions in the stipulation to apply to those
job titles.” Halsted Communications, 347 NLRB 225
(2006).
B. Analysis of Challenges
1. The ballots of Craft, Gogan, and Lawson
Craft, Gogan, and Lawson are grading-crew employ-
ees. Grading crews consist of two employees: an opera-
tor, who runs the grader, and another employee who
dumps, spreads, and hand-rakes gravel in areas that can-
not be reached by the equipment, and who uses a hand-
operated plate compactor to compact the gravel. This
second employee also uses a piece of heavy equipment
called a stone roller to compact the stone or gravel after it
has been graded. Craft, Gogan, and Lawson perform the
tasks of this second, nongrader-operator employee. They
also occasionally operate other types of heavy equip-
ment.
The hearing officer began his analysis of Craft’s,
Gogan’s, and Lawson’s eligibility by observing that the
only record evidence of job titles held by the Employer’s
employees is a document entitled “Employer’s Profile
List.” In that document, Craft, Gogan, and Lawson are
classified as “laborers.” The hearing officer questioned
the reliability of the profile list as evidence of employee
job titles, noting that some of the titles it contains “are
not entirely accurate.” Nonetheless, the hearing officer
found that, even assuming that the Employer classifies
Craft, Gogan, and Lawson as laborers, the stipulation is
ambiguous as to them because their job titles do not
“fairly represent the [employees’] function,” citing Via-
com Cablevision, 268 NLRB 633, 633 fn. 8 (1984). Fur-
ther finding insufficient extrinsic evidence of the parties’
intent, the hearing officer proceeded to step three of the
Caesar’s Tahoe analysis and found that Craft, Gogan,
and Lawson are dual-function employees who operate
heavy equipment for sufficient periods of time to demon-
strate their interest in the working conditions of the unit.
He therefore recommended that Craft, Gogan, and Law-
son be included in the unit.
The Employer excepts, asserting that the stipulated
unit unambiguously excludes “all laborers,” that Craft,
Gogan, and Lawson are classified as laborers, and thus,
that they must be excluded from the unit under the first
step of the Caesar’s Tahoe analysis. The Employer also
asserts that the hearing officer misapplied Viacom Ca-
blevision. In this regard, the Employer argues that the
Board’s statement in Viacom that it will only consider
classifications that “fairly represent” the work employees
perform was only intended to protect petitioning unions
from employer “gerrymandering” of the stipulated unit in
response to an organizing effort. The Employer main-
tains that this is not the situation in the instant case, as
the Employer has not changed any employee’s job classi-
fication since the parties agreed to the language of the
stipulation.
We find merit in the Employer’s exceptions. We find,
contrary to the hearing officer, that the stipulation is not
ambiguous with regard to Craft, Gogan, and Lawson, and
that these three employees are unambiguously excluded
from the unit. The stipulated election agreement ex-
cludes “all laborers,” and these three employees are clas-
sified as laborers in the employee’s profile list. Although
we acknowledge that the profile list contains some
anomalous job titles, the hearing officer did not find (and
the Union does not contend) that the classifications con-
tained therein do not reflect the job titles the Employer
has assigned to the employees whose ballots are at issue
in this case. Moreover, the profile list and testimony
based on the profile list provide the only record evidence
of employee classifications, on which we are constrained
to rely by the parties’ agreement to a stipulation phrased
in terms of classifications.3
Further, we find that the Viacom Cablevision excep-
tion for instances in which job titles or classifications do
not fairly represent employees’ functions, invoked by the
hearing officer, is not applicable here. Although the
Board in Viacom did not clarify the scope of that excep-

3 Where a stipulated unit is defined in terms of type of work per-
formed, however, the stipulation itself requires the Board to look be-
hind job titles or classifications. See Halsted Communications, supra at
226 fn. 5.
BUTLER ASPHALT L.L.C. 191
tion, the facts of that case support the Employer’s con-
tention that the Board was concerned with preventing
employers from attempting to gerrymander a stipulated
unit on the eve of an election. There, the employer, a
few weeks before the eligibility cutoff date, transferred
an employee from the position of “commercial marketing
representative” to that of “commercial sales representa-
tive.” The stipulated unit consisted of “sales representa-
tives,” and the Board found the transferred employee
unambiguously included in the stipulated unit. In this
context, the Board added a footnote stating that it “will
only consider bona fide titles or job descriptions that
fairly represent the employee’s function and have been
applied for a reasonable period of time.” Viacom, 268
NLRB at 633 fn. 8. Although left unspoken, the Board’s
reason for adding this footnote is apparent: to forestall
future attempts to rely on Viacom to justify bad-faith,
eleventh-hour efforts to gerrymander a stipulated unit.
Additionally, applying the Viacom footnote as the
hearing officer did would undermine the Caesar’s Tahoe
analytical framework. Citing Viacom for the proposition
that a stipulated job title must “fairly represent the em-
ployee’s function,” the hearing officer found Craft’s,
Gogan’s, and Lawson’s “laborer” classification ambigu-
ous because it “does not match what they actually do.”
That is not the correct method for determining whether a
stipulation is ambiguous. As set forth above, the proper
method is to compare the express language of the stipu-
lated bargaining unit with the disputed classification.
Invoking Viacom to look behind classifications to the
work employees perform is inconsistent with the expec-
tation, upon which the Caesar’s Tahoe analysis is based,
that the parties know the employees’ job titles and intend
their descriptions in the stipulation to apply to those job
titles. Doing so, moreover, would compromise the pre-
dictability and finality afforded by the Caesar’s Tahoe
framework, under which employers and labor organiza-
tions can expect that their unambiguous stipulated elec-
tion agreements will be enforced as written. Thus, ab-
sent gerrymandering, where a classification-based stipu-
lation is unambiguous and not inconsistent with the Act
or established Board policy, the analysis ends at step one
of the Caesar’s Tahoe test.
Here, gerrymandering is not at issue, and neither is the
consistency of the stipulation with the Act or established
Board policy. Comparing the express language of the
stipulated bargaining unit with the disputed classifica-
tion, the stipulation specifically excludes “all laborers,”
and Craft, Gogan, and Lawson are classified as “labor-
ers.” As the language of the stipulation is unambiguous
with regard to these three employees, they are excluded
at the first step of the Caesar’s Tahoe analysis. We
therefore reverse the hearing officer and sustain the chal-
lenges to the ballots of Craft, Gogan, and Lawson.
2. The ballot of Ricki Tucker
Ricki Tucker spends most of his worktime operating
the prime truck or the tack truck, which are also called
distributor trucks. Prime is a mixture of tar and diesel
fuel; tack, a mixture of tar and water. Tucker applies
these liquid mixtures between layers of gravel and as-
phalt for sealing and bonding purposes. The prime and
tack trucks differ from other trucks operated by other of
the Employer’s employees. They carry tanks containing
the prime or tack and feature a bar mounted on the back
of the truck with 40 to 50 small nozzles, through which
the prime or tack is dispensed. When operating the
truck, Tucker throws a toggle switch to lower the bar and
opens a valve to set the pressure for the liquid to flow out
at a given rate. Tucker does not work with a specific
grading or paving crew, but goes from jobsite-to-jobsite
as needed. When he is not operating the prime or tack
truck, Tucker works in the garage assisting with mechan-
ics’ work, runs parts, performs various maintenance and
landscaping chores, and occasionally operates heavy
equipment. His immediate supervisor is Operations
Manager Phil Moyer, who also oversees the operators.
Tucker is classified on the employee’s profile list as
“Asphalt Distributor.”
Analyzing Tucker’s status under Caesar’s Tahoe, the
hearing officer first noted that the stipulated unit specifi-
cally excludes truckdrivers. He then noted that, although
the Employer contends that Tucker is a truckdriver, he is
classified on the profile list as “Asphalt Distributor,” the
trucks he drives are markedly different from other trucks
utilized by the Employer, and he spends a significant
amount of his working time performing tasks other than
driving the tack and prime trucks. Again citing Viacom,
fn. 8, the hearing officer found that, if Tucker is consid-
ered a truckdriver, that job title does not fairly represent
his function. He therefore found the stipulation ambigu-
ous with regard to Tucker, and further found (proceeding
to the second step of the Caesar’s Tahoe analysis) that
extrinsic evidence did not clarify the parties’ intent. Pro-
ceeding to the third step of Caesar’s Tahoe, the hearing
officer found that although Tucker is not a dual-function
employee with regard to the unit, he should be included
in the unit based on a traditional community-of-interest
analysis. In that regard, the hearing officer noted that
Tucker has work-related contact with heavy equipment
operators, his pay is within the same range as that of
some of the operators indisputably included in the unit,
he shares common immediate supervision with employ-
ees in the unit, and his work is integrated with the Em-
ployer’s production process. For these reasons, the hear-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD192
ing officer concluded that Tucker shares a sufficient
community of interest with the unit to warrant his inclu-
sion, and he recommended that Tucker’s ballot be
opened and counted.
The Employer excepts, arguing that since Tucker is a
truckdriver and the stipulation excludes “truck drivers”
he should be found excluded from the unit at step one of
the Caesar’s Tahoe analysis. The Employer also argues
that extrinsic evidence confirms that the parties meant to
exclude Tucker from the unit. In this regard, the Em-
ployer points out that the Union’s first petition (which
was dismissed) specifically included within the unit em-
ployees who operate “distributor trucks,” while its sec-
ond petition specifically excluded “dump truck drivers,
low boy and distributor truck drivers.” The Employer
contends that the parties’ subsequent stipulated agree-
ment to exclude all “truck drivers” merely shows that the
Union adhered to its “second petition” intent to exclude
distributor truckdrivers and cannot logically be read as
indicating a return to its “first petition” intent.
For reasons that will be apparent from our foregoing
discussion of Viacom, we do not agree with the hearing
officer’s analysis with respect to Tucker. We agree,
however, with his finding that the stipulation as regards
Tucker is ambiguous. The problem with the Employer’s
argument is that it is based on an assumption that
Tucker’s classification is “truck driver.” However,
Tucker’s classification as set forth in the employee’s
profile list is “Asphalt Distributor.” The stipulation nei-
ther includes nor excludes this classification, and there-
fore “the parties’ intent with respect to that classification
is not clear.” Los Angeles Water & Power, supra, 340
NLRB at 1235. We must therefore proceed to the second
step of the Caesar’s Tahoe analysis and consider extrin-
sic evidence of the parties’ intent.
We agree with the hearing officer that the fact that the
language describing the proposed unit was changed from
the first to the second petition and again from the second
petition to the stipulation does not necessarily indicate
that the parties intended to exclude Tucker from the unit.
The first petition described the petitioned-for unit (in
relevant part) as consisting of “[a]ll heavy equipment
operators operating . . . distributor trucks.” The revision
of that language in the second petition likely indicates
nothing more than that the Union had learned that the
Employer’s heavy equipment operators do not drive dis-
tributor trucks. The change from the specific language of
the second petition to the general language of the stipula-
tion is equally inconclusive. This language could have
been changed for a reason or reasons unrelated to the
parties’ intentions with respect to Tucker.
We must therefore proceed to the third step of Cae-
sar’s Tahoe, the community-of-interest analysis. We
agree with the hearing officer that Tucker is properly
included in the unit under such an analysis. The ele-
ments of common supervision, functional integration,
frequency of contact with unit employees, and common-
ality of wages (with some unit employees) and working
conditions are sufficient to warrant Tucker’s inclusion in
the unit. See, e.g., Publix Super Markets, 343 NLRB
1023, 1024 (2004) (setting forth community-of-interest
factors). We therefore overrule the challenge to Ricki
Tucker’s ballot.
3. The ballots of Travis Robinson and Mark Evans
Travis Robinson’s and Mark Evans’ classifications are
listed on the employee’s profile list as “Operator—
Paver/Grader.” They are foremen on the Employer’s
paving crews. Each crew consists of a foreman, a paver
operator, two asphalt roller operators, and two or three
laborers. The foremen work with the other members of
the crews and, like the other crew members, are paid at
an hourly rate. Robinson and Evans spend much of their
time operating one of two screws on the back of the
paver. The screws regulate the amount of asphalt dis-
tributed by the paver. The Employer’s president testified
that he does not consider turning a paver screw to be
heavy equipment operation. Robinson spends more than
50 percent of his time turning the screw. Robinson has
operated some heavy equipment, but only on a few occa-
sions, for 20 minutes at a time. Evans also spends most
of his time operating the screw, and has operated heavy
equipment on only a few occasions.
Once again relying on Viacom, fn. 8, the hearing offi-
cer found the stipulation ambiguous with regard to Rob-
inson and Evans because the job classification of “Opera-
tor—Paver/Grader” does not fairly represent their func-
tion. The hearing officer found that Robinson and Evans
rarely operate heavy equipment, spending most of their
time turning a screw, which does not qualify as heavy
equipment operation. Finding insufficient extrinsic evi-
dence of the parties’ intent, he proceeded to the third step
of Caesar’s Tahoe and examined community-of-interest
factors. Doing so, he found that, in light of the disparity
between their rates of pay and those of the unit employ-
ees, their different day-to-day functions from those of the
operators, and differing working conditions, Robinson
and Evans should be excluded from the unit. The Em-
ployer excepts, arguing that Robinson and Evans are
classified as operators and thus should be included in the
unit under the first step of Caesar’s Tahoe.
We find merit in the Employer’s exception. We rec-
ognize that Robinson’s and Evans’ classification of “Op-
erator—Paver/Grader” does not exactly match the lan-
BUTLER ASPHALT L.L.C. 193
guage of the stipulation. The stipulated unit consists of
“all heavy equipment operators.” The Employer, how-
ever, does not employ any individuals with the title of
“heavy equipment operator.” In a recent decision, the
Board addressed a similar situation. In USF Reddaway,
349 NLRB 329 (2007), the language of the stipulation
did not match any of the employer’s actual job titles.
The Board considered whether to include an individual
with the classification “parts/mechanic” in a unit of “all
mechanics.” Given that the classifications in the stipula-
tion did not match the actual classifications used by the
employer, the Board indicated that it would be reason-
able to read the stipulation as unambiguously including
all job classifications that included the word “me-
chanic.”4
Similarly, in the instant case, the stipulation refers to
“heavy equipment operators,” rather than breaking down

4 The Board ultimately found the stipulation ambiguous, however,
because the unit description also separately listed the position of trailer
mechanic, calling into question what was meant by “all mechanics.”
the classifications according to which type of heavy
equipment each operator operates. As no employee has
the specific title of “heavy equipment operator,” it is rea-
sonable to read the stipulation as including employees
whose job titles include the word “operator,” combined
with the name or names of a piece or pieces of heavy
equipment. Because Robinson and Evans are classified
as “Operator—Paver/Grader,” and pavers and graders are
types of heavy equipment, we find that Robinson and
Evans are unambiguously included in the unit under the
first step of Caesar’s Tahoe. We therefore reverse the
hearing officer and overrule the challenges to their bal-
lots.
DIRECTION
IT IS DIRECTED that the Regional Director for Region 9
shall, within 14 days from the date of this Decision and
Direction, open and count the ballots of Ricki Tucker,
Travis Robinson, and Mark Evans. The Regional Direc-
tor shall then prepare and serve on the parties a revised
tally of ballots and issue the appropriate certification.