Halsted Communications

National Labor Relations Board - Board Decisions

May 31, 2006

347 N.L.R.B. 225 (N.L.R.B. 2006)

HALSTED COMMUNICATIONS
347 NLRB No. 20
225
Halsted Communications and Local 1430, Interna-
tional Brotherhood of Electrical Workers, AFL–
CIO, Petitioner. Case 2–RC–23006
May 31, 2006
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held September 12, 2005, and the hearing
officer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election
Agreement. The revised tally of ballots shows 28 for and
24 against the Petitioner, with 5 determinative challenged
ballots.
The Board has reviewed the record1 in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations2 only to the extent consis-
tent with this decision, and finds that a certification of
representative should be issued.
At issue are the challenges to the ballots of Contractor
Technician Supervisors Jayson McCoy, Uton Cousins,
and Collie Smith. The hearing officer overruled the chal-
lenges and found that these individuals were eligible to
vote as dual-function employees because they regularly
performed unit work. The Petitioner excepts to the hear-
ing officer’s recommendation to overrule the challenges
and asserts that McCoy, Cousins, and Smith should be
excluded from the bargaining unit by the clear terms of
the Stipulated Election Agreement. We find merit in this
exception.
When resolving determinative challenged ballots in
cases involving stipulated bargaining units, the Board’s
function is to ascertain and enforce the parties’ intent,
provided that it is not contrary to any statutory provision
or established Board policy. Caesar’s Tahoe, 337 NLRB
1096, 1097 (2002). To determine whether an individual
is included in the stipulated bargaining unit, the Board
applies a three-step test. First, the Board must determine
whether the stipulation is ambiguous. If the stipulation
clearly expresses the objective intent of the parties in
unambiguous terms, the Board simply enforces the
agreement. If the stipulation is ambiguous, the Board
continues to step two and seeks to determine the parties'

1 At the hearing, the parties stipulated that Kevin Williams, one of
the challenged voters, was employed in a unit classification, that he was
eligible to vote, and that his ballot should be opened and counted.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to sustain the challenge to the ballot of Efrain
Llano.
intent through usual methods of contract interpretation,
including the examination of extrinsic evidence. If the
parties' intent still remains unclear, the Board will reach
step three and employ its standard community-of-interest
test to determine the bargaining unit. Id.
To determine whether the stipulation is clear or am-
biguous, the Board will compare the express language of
the stipulated bargaining unit with the disputed classifi-
cation. Bell Convalescent Hospital, 337 NLRB 191
(2001) (citing Viacom Cablevision, 268 NLRB 633
(1984)). The Board will find a clear intent to include
those classifications that match the express language, and
will find a clear intent to exclude those classifications not
matching the stipulated bargaining unit description. Bell
Convalescent Hospital, supra at 191. If the classification
is not included, and there is an exclusion for “all other
employees,” the stipulation will be read to clearly ex-
clude that classification. Id.; see also National Public
Radio, Inc., 328 NLRB 75 (1999); Prudential Insurance
Co., 246 NLRB 547 (1979). The Board bases this ap-
proach on the expectation that the parties know the eligi-
ble employees’ job titles, and intend their descriptions in
the stipulation to apply to those job titles. Bell Conva-
lescent Hospital, supra at 191.
Here, the Stipulated Election Agreement specified the
following unit:
INCLUDED: All full-time and regular part-time
installation technicians, including technician train-
ees, employed by the Employer at and out of its fa-
cility located at 1015 Saw Mill River Road,
Yonkers, NY.
EXCLUDED: All other employees, including
office clerical employees, managers, dispatchers, in-
dependent contractors, warehouse employees, and
guards, professional employees, and supervisors as
defined by the Act.
The disputed employees are contractor technician su-
pervisors. This classification is not included in the ex-
press language of the unit description, and there is an
exclusion for “all other employees.” Thus, the parties’
intent to exclude the disputed employees is clear. Fur-
ther, the parties’ stipulation is not contrary to any statu-
tory provision or established Board policy. We will
therefore enforce the clear terms of the stipulation.3

3 Member Schaumber notes that in Columbia College, 346 NLRB
726 (2006), referenced in the concurrence, he dissented as to the find-
ing that the term “faculty” in the stipulated election agreement in that
case was ambiguous. In his view, that finding was inconsistent with the
principles stated in the precedent applied herein. See id., slip op. at 3
fn. 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD226
The hearing officer should not have reached the dual-
function issue. A dual-function analysis is a variant of
the community-of-interest test,4 and it is not applied
where the parties’ intent to exclude the classification is
clear. Peirce-Phelps, Inc., 341 NLRB 585, 585–586
(2004) (hearing officer erred by addressing the merits of
the dual-function issue where the stipulation clearly ex-
cluded disputed employee); Bell Convalescent Hospital,
supra (same).5
For these reasons, we sustain the challenges to the bal-
lots of McCoy, Cousins, and Smith. The remaining chal-
lenged ballot is no longer determinative,6 and we accord-
ingly find that a certification of representative should be
issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Local 1430, International Brotherhood of
Electrical Workers, AFL–CIO and that it is the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
INCLUDED: All full-time and regular part-time
installation technicians, including technician train-
ees, employed by the Employer at and out of its fa-
cility located at 1015 Saw Mill River Road,
Yonkers, NY.
EXCLUDED: All other employees, including
office clerical employees, managers, dispatchers, in-
dependent contractors, warehouse employees, and
guards, professional employees, and supervisors as
defined by the Act.
CHAIRMAN BATTISTA, concurring.
I agree with my colleagues that the challenges to the
ballots of Jayson McCoy, Uton Cousins, and Collie
Smith should be sustained. Contrary to my colleagues,
however, I do so not because the unit description unam-

4 Berea Publishing Co., 140 NLRB 516, 519 (1963).
5 In Harold J. Becker Co., 343 NLRB No. 11, slip op. at 1 (2004),
cited by the hearing officer, the Board applied a dual-function analysis
to determine whether the challenged employees were eligible to vote.
Although the employees at issue in that case fell within expressly ex-
cluded classifications, the stipulated bargaining unit included “[a]ll
employees of the Employer engaged in sheet metal work,” and the
disputed employees performed some amount of sheet metal work. Id.
at 1 fn. 3. Therefore, it was necessary for the Board to apply the dual-
function test to determine whether the employees in question performed
sufficient unit work to warrant inclusion in the unit. Harold J. Becker
Co. is distinguishable from the instant situation because the stipulated
bargaining unit here is defined only by job classifications and not by
the type of work performed.
6 The hearing officer recommended, pursuant to the parties’ stipula-
tion, that the ballot of Kevin Williams be opened and counted. See fn.
1, supra. Because we are sustaining the challenges to the three ballots
discussed above, Williams’ vote alone would not affect the election
results. Therefore, his ballot should not be opened and counted.
biguously excludes them, but rather because the evidence
fails to establish that they share a community of interest
with the other unit employees.
As the majority states, under Caesar’s Tahoe, 337
NLRB 1096, 1097 (2002), the Board uses a three-step
test to resolve determinative challenges in cases with
stipulated bargaining units. Under the first step, the
Board determines whether the unit description is clear
and unambiguous. “If the objective intent of the parties is
expressed in clear and unambiguous terms in the stipula-
tion, the Board simply enforces the agreement.” Id. If,
however, the description is ambiguous, the Board applies
the normal principles of contract interpretation, including
an examination of extrinsic evidence to determine the
intent of the parties. Lastly, if the parties’ intent is still
unclear, the Board will apply community-of-interest
principles to determine whether the disputed employees
belong in the unit.
Contrary to my colleagues, I do not find the unit de-
scription to be clear and unambiguous. The description
includes “[a]ll full-time and regular part-time installation
technicians.” It is uncontroverted that the contractor
technician supervisors involved herein perform some
installations every day. Thus, they arguably could be
considered “part-time installation technicians,” and prop-
erly included in the unit. The fact that they are not liter-
ally termed “part-time installation technicians” is not
necessarily determinative. Indeed, employees who per-
form most of Employer’s installations are sometimes
termed “field technicians” and yet no party contends that
they are excluded from the unit. Thus, unlike my col-
leagues, I am not convinced that the contractor technician
supervisors should be excluded simply because they are
not referred to by the same name as one of the classifica-
tions in the unit description.1
My colleagues note that the unit description excludes
“all other employees.” However, this analysis simply
begs the issue. If, as I believe, the term “part time instal-
lation technicians” arguably covers the technicians in-
volved herein, it follows that they are arguably not within
the term “all other employees.”
Finally, in Harold J. Becker Co., 343 NLRB No. 11
(2004), the employees fell within an expressly excluded
classification. On the other hand, the unit expressly in-
cluded “all employees engaged in sheet metal work,” and
the employees at issue performed some of the work. The
Board used a “dual-function” analysis, thereby implicitly
conceding that the unit description was ambiguous. My

1 See, e.g., Columbia College, 346 NLRB 726 (2006), slip op. at 3
(finding unit classifications of “independently contracted tutors” and
“faculty” to be ambiguous).
HALSTED COMMUNICATIONS 227
dissent in the case was simply on the “dual-function”
issue.
For all of these reasons, I conclude that the unit de-
scription is not clear and unambiguous.
Secondly, the record does not include any extrinsic
evidence concerning whether the unit description was
intended to include or exclude the disputed employees.
Thus, I turn to the third step under Caesar’s Tahoe:
community-of-interest principles.2 Under this step, I find
that the contractor technician supervisors should be ex-
cluded from the unit. First, the contractor technician su-
pervisors perform different functions from the unit em-
ployees because they primarily perform supervisory du-
ties, albeit not vis-à-vis employees. These duties in-
clude: inspecting installations; inspecting vehicles; com-
pleting quality control reports and safety reports; and
making sure contractor technicians are in uniform. These
are the same duties performed by the technician supervi-

2 “These factors include distinctions in the skills and functions of
particular employee groups, their separate supervision, the employer’s
organizational structure, differences in wages and hours, integration of
operations, interchange and contacts.” Id.
sors, whom both parties stipulated were Section 2(11)
supervisors, properly excluded from the unit. Indeed, the
only reason the contractor technician supervisors are not
likewise barred from the unit under Section 2(11) is that
they do not supervise employees, only contractors.
Concededly, the contractor technician supervisors per-
form some of the same unit work done by field techni-
cians. However, there is little interchange between them,
the field technicians perform no supervisory duties,3 and
the contractor technician supervisors—unlike the field
technicians—are salaried and attend management meet-
ings. Therefore, I find that there is an insufficient com-
munity of interest between the contractor technician su-
pervisors and the unit employees to warrant their inclu-
sion in the unit. Accordingly, I join the majority in sus-
taining the challenge to their ballots.

3 The fact that the contractor technician supervisors perform some
amount of unit work is not dispositive to my analysis. See Arlington
Masonry Supply, Inc., 339 NLRB 817 fn. 3 (2003) (where Member
Schaumber and I expressed the view that even if the employee regu-
larly performs some bargaining unit work, it may still be appropriate
“to evaluate other community of interest factors in determining whether
that employee should be included in the unit”).