K&N Engineering, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 2017

365 NLRB No. 141 (N.L.R.B. 2017)

365 NLRB No. 141
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
K&N Engineering, Inc. and International Associa-
tion of Machinists and Aerospace Workers,
AFL–CIO, District Lodge 725, Petitioner. Cas-
es 21–RC–174486 and 21–RC–174700
October 12, 2017
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
In this representation case the parties entered into a
stipulated election agreement providing that enumerated
classifications of “production employees” were eligible
to vote in the election while employees in four mainte-
nance classifications, whom the employer additionally
contended should be included in the unit, would vote
subject to challenge. The issue presented is whether the
challenged ballots of those maintenance employees
should be opened and counted where, as here, they are
determinative to the results of the election. Applying
Odwalla1 and Specialty Healthcare2 to the facts of this
case, we find that the challenged ballots of employees in
the four maintenance classifications should be opened
and counted. Accordingly, we grant the Employer’s re-
quest for review insofar as it argues that the four mainte-
nance classifications are in the unit, and we remand this
case to the Regional Director to open and count these
challenged ballots and issue the appropriate certification.
In all other respects, we deny the Employer’s request for
review of the Regional Director’s Decision and Order
Sustaining Challenges, Overruling Objections and Certi-
fication of Representative.
I. PROCEDURAL HISTORY
Pursuant to a Stipulated Election Agreement approved
by the Acting Regional Director for Region 21 of the Na-
tional Labor Relations Board, the parties agreed to an elec-
tion in a unit of the Employer’s full-time and regular
part-time “production employees,” including employees
in more than 30 listed job classifications (including jani-
tors), excluding all other employees, office clerical em-
ployees, professional employees, confidential employees,
managers, guards and supervisors as defined by the Act.
The Stipulated Election Agreement also provided that
the eligibility of four classifications—Maintenance

1 Odwalla, Inc., 357 NLRB 1608 (2011).
2 Specialty Healthcare & Rehabilitation Center of Mobile, 357
NLRB 934 (2011), affd sub. nom, Kindred Nursing Centers East, LLC
v. NLRB, 727 F.3d 552 (6th Cir. 2013).
Leads, Maintenance Techs I, Maintenance Techs II,
and Maintenance Techs III (collectively, “Maintenance
Techs”)—was not resolved, and that individuals in
those classifications could vote subject to challenge.3
An election was conducted on May 12, 20164 where,
of the approximately 641 eligible voters, 285 voted for
the Petitioner, 271 voted against representation, and 30
ballots were challenged—a number sufficient to affect the
results of the election.
On May 18, the Employer filed timely objections to
the election, alleging that the Board agents conducting
the election improperly allowed the Petitioner to speak to
voters outside the polling place, that one of the Board
agents identified himself to voters as being with the Peti-
tioner, and that the Board agents failed to properly mark
and identify two of the challenged ballot envelopes. The
objections also alleged that during the critical period, the
Petitioner and its representatives, agents, and supporters
engaged in threatening, intimidating, and coercive con-
duct, created a general atmosphere of fear, coercion, and
confusion, and distributed false, misleading and decep-
tive flyers.
On July 5, the Regional Director for Region 21 ap-
proved a supplemental stipulation between the parties
resolving 11 of the 30 challenged ballots, agreeing to
open and count 8 of them. The revised tally of ballots
showed 289 votes for the Petitioner, 275 votes against
representation, and 19 remaining determinative chal-
lenged ballots.
On August 1, the Acting Regional Director for Region
21 issued an Order directing a hearing on the 19 remain-
ing challenged ballots and the Employer’s election objec-
tions. The Order explained that 16 of the challenged
ballots were cast by voters working in the Maintenance
Tech classifications whom the parties agreed would vote
subject to challenge. Another voter (classified as a Facil-
ities Maintenance Technician) had been challenged by
the Board agent because he was not on the voter list.
The two remaining challenged ballots were in envelopes
that did not list any voter identifying information or rea-
son for the challenges. However, the Order stated that
the Region administratively had determined that the en-
velopes contained the ballots of two voters who worked
in a Maintenance Tech classification that the parties
agreed to vote under challenge.

3 The Employer took the position that these maintenance employees
should be included in an appropriate unit, while the Petitioner would
have excluded them.
4 All dates are in 2016 unless otherwise noted.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the September 19 hearing,5 the parties litigated the
Employer’s objections and the eligibility of the 19 chal-
lenged voters. The Employer also raised a new eligibil-
ity issue, asserting that the classification of Machine Ad-
justment Coordinator, Pleating (sometimes also refer-
enced as “Maintenance Adjustment Coordinator, Pleat-
ing”), which was not specifically mentioned in the par-
ties’ Stipulated Election Agreement, should nonetheless
be included in the bargaining unit. The parties also
raised issues in their briefs with respect to the eligibility
of the janitors, even though the Stipulated Election
Agreement expressly provided that the janitors were in-
cluded in the unit.
On October 24, the hearing officer issued a Report on
Challenged Ballots and Objections. The hearing officer
found that the Employer’s objections lacked merit, and
recommended that they be overruled in their entirety.
The hearing officer also recommended overruling the
challenges to the 16 ballots identified as being cast by
voters in the Maintenance Tech classifications, because
she found that the stipulated bargaining unit was not an
appropriate unit without these classifications. However,
the hearing officer recommended sustaining the chal-
lenges to the two ballots in the unlabeled challenge ballot
envelopes, because she found insufficient evidence to
adduce which voter had cast each of the ballots.6 The
hearing officer further recommended sustaining the chal-
lenge to the ballot cast by the Facilities Maintenance
Technician, determining that the parties’ Stipulated Elec-
tion Agreement clearly and unambiguously excluded this
job classification. The hearing officer also determined
that the status of the Machine Adjustment Coordinator,
Pleating was not properly before her, because it was not
included in the Order Directing Hearing and because no
individual in that classification had attempted to vote.
Finally, the hearing officer rejected (1) the Employer’s
argument that the janitors should be excluded from the
unit, notwithstanding that the parties’ Stipulated Election
Agreement expressly included them in the unit; and (2)
the Petitioner’s argument that if the stipulated unit were
found inappropriate, the solution should be to exclude
the janitors, not add the Maintenance Techs, to the unit.
The Petitioner and Employer both filed exceptions to the
hearing officer’s report, and the Employer filed a re-
sponse to Petitioner’s exceptions.

5 The cases were transferred from Region 21 to Region 27 for the
purpose of adjudicating the matters covered by the Order Directing
Hearing.
6 The hearing officer did not dispute the results of the Region’s ad-
ministrative investigation, but found it was insufficient in the absence
of the parties’ agreement, or evidence adduced at the hearing establish-
ing who cast each ballot.
On January 20, 2017, the Regional Director for Region
27 issued a Decision and Order Sustaining Challenges,
Overruling Objections and Certification of Representa-
tive. In her decision, the Regional Director agreed with
the hearing officer that the Employer’s objections
should be overruled. The Regional Director also adopt-
ed the hearing officer’s recommendations to sustain the
challenge to the Facilities Maintenance Technician’s
ballot, and to reject the Employer’s postelection claim
that the unit should include the Machine Adjustment Co-
ordinator, Pleating position. As to the latter, the Region-
al Director noted that the parties’ Stipulated Election
Agreement did not list the Machine Adjustment Coordi-
nator, Pleating classification among the inclusions or
provide for that classification to vote subject to chal-
lenge. The Regional Director further noted that no one
in that classification had attempted to vote, the Order
Directing Hearing did not direct a hearing on this issue,
and the Employer had not properly preserved the issue.
The Regional Director also noted that if she were to
reach the issue, the parties’ intent to exclude the Machine
Adjustment Coordinator, Pleating position was clear be-
cause the Stipulated Election Agreement expressly ex-
cluded “all other employees.”
However, contrary to the hearing officer, the Regional
Director sustained the challenges to the ballots cast by
the 16 identified Maintenance Techs who voted subject
to challenge pursuant to the parties’ Stipulated Election
Agreement. The Regional Director reasoned that the
Employer had not met its burden of proving that the
Maintenance Techs share an overwhelming community
of interest with the stipulated inclusions, i.e. the produc-
tion employees. The Regional Director also concluded,
contrary to the hearing officer, that the ballots in the two
unmarked challenged ballot envelopes had been cast by
employees in the Maintenance Tech classifications—as
proven by the administrative investigation, to which no
party offered credible contrary evidence. Accordingly,
the Regional Director concluded that those 2 ballots
should be treated the same as the other 16 ballots cast by
the other Maintenance Techs, and should not be opened
and counted. Finally, the Regional Director rejected the
Employer’s contention that the janitors should be ex-
cluded from the unit, noting that it was contrary to the
clear and unambiguous language of the parties’ Stipulat-
ed Election Agreement to include them in the production
unit.
The Employer filed the instant request for review con-
tending that (1) the Regional Director erred in failing to
set aside the election because of Board agent misconduct
alleged in its objections; (2) the Regional Director erred
in failing to find that the only appropriate unit consists of
K&N ENGINEERING, INC. 3
all production workers, including the Maintenance Techs
and the Machine Adjustment Coordinator, Pleating, but
excluding the janitors and Facilities Maintenance Tech-
nician; and (3) if the election is not set aside, the chal-
lenged ballots in the unmarked envelopes should be
counted along with the ballots cast by the 16-identified
Maintenance Techs who voted subject to challenge.7 The
Petitioner filed an opposition to the Employer’s request
for review.8
Having carefully considered the Employer’s request
for review, we find that it raises no substantial issues
warranting review as to the Regional Director’s decisions
to overrule the Employer’s election objections and to
exclude the Machine Adjustment Coordinator, Pleating
classification from the unit. However, we agree with the
Employer that the Regional Director erred on the chal-
lenged ballot issues. Accordingly, we grant review and
reverse the Regional Director on the issue of the 18 chal-
lenged Maintenance Techs.
II. ANALYSIS AND CONCLUSIONS
Our analysis begins with Odwalla, which, like here,
involved a Stipulated Election Agreement providing that
certain agreed-upon classifications were in the unit, that
other classifications proposed by the nonpetitioning party
would vote under challenge, and where those challenges
proved determinative. Odwalla, Inc., 357 NLRB 1608,
1608, 1611 & fn. 27 (2011). Odwalla provides that Spe-
cialty Healthcare sets forth the proper framework for
determining the placement of those challenged classifica-
tions. 357 NLRB at 1611 fn. 27. Contrary to the Re-
gional Director, Odwalla does not hold that the agreed-
upon classifications in the Stipulated Election Agreement
(here, the production employees) are presumed to consti-
tute an appropriate unit. Rather, as explained in Odwal-
la, the employees stipulated as included in the unit
should be treated as the “petitioned-for” unit for purposes
of the analysis in such circumstances. 357 NLRB at
1611 fn. 27. And Specialty Healthcare instructs that the
initial inquiry is whether the petitioned-for unit (here,
production employees) is readily identifiable as a group
and shares a community of interest. 357 NLRB at 943,
944 fn. 25.

7 The Employer’s request for review agrees with the Regional Di-
rector’s finding that the ballots in the unmarked envelopes were cast by
Maintenance Techs.
8 No party has requested review of the Regional Director’s adoption
of the hearing officer’s recommendation that the challenge to the ballot
cast by the employee in the facilities maintenance technician classifica-
tion should be sustained and the classification excluded from the unit.
Here, although the stipulated unit of production em-
ployees is readily identifiable as a group,9 we find, apply-
ing traditional community of interest factors, that it does
not comprise an appropriate unit. The stipulated unit
does not track any lines drawn by the Employer. See
Bergdorf Goodman, 361 NLRB No 11, slip op 3–4
(2014); Odwalla, Inc., 357 NLRB at 1612. It is not
drawn along department lines because it includes em-
ployees from different departments. It is not drawn
along functional lines, because it includes janitors who
do not perform any production work. Nor is it drawn
along supervisory lines as the janitors work in a different
department from production employees and are separate-
ly supervised.
Although other community of interest factors may cer-
tainly overcome a petitioned-for unit’s failure to track
administrative or operational lines drawn by an employ-
er,10 we find that they do not do so here. While the jani-
tors share some common terms of employment with oth-
er employees in the stipulated unit, especially health and
welfare benefits, 401(k) plan, and leave benefits, the
work of the janitors is not functionally integrated with
the production employees, the janitors and production
employees do not share common supervision, and there
is no interchange between the janitors and the production
employees. The janitors do not even clean the produc-
tion areas.11 And there is no evidence that the janitors
and production employees have similar skills or training.
Because we find that the stipulated unit, again, limited
to the production and janitorial employees, is not appro-
priate applying traditional community of interest factors,
we reject the Petitioner’s claim, and the Regional Direc-
tor’s conclusion, that the four Maintenance Tech classifi-
cations that the parties agreed to vote subject to chal-
lenge, and whose ballots are determinative, may be add-
ed to the unit only if they share an overwhelming com-
munity of interest with the production employees. As
Specialty Healthcare makes clear, and as the hearing
officer recognized, that heightened standard applies if,
and only if, the petitioned-for (in this case stipulated)
unit constitutes an appropriate unit applying traditional

9 The stipulation lists specific job classifications and therefore is suf-
ficient to specify the group of employees that the Petitioner seeks to
include.
10 See e.g., Bergdorf Goodman, 361 NLRB No. 11 slip op 3–4 & fn.
5 (2014) (noting, for example, that if employees in two different de-
partments shared common supervision despite being located in different
departments, that would show that the departmental distinctions were
relatively less important in the organization of the work force).
11 The hearing officer found that the production employees in each
department are responsible for cleaning their respective departments.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
community of interest factors. 357 NLRB at 944 fn. 25.
As discussed above, we find it does not.12
As a result, we turn to the question whether the four
Maintenance Tech classifications, whose status the par-
ties agreed would be resolved after the election if their
votes were determinative, share a community of interest
with the stipulated inclusions. We find that they do share
a sufficient community of interest to be included.13
As found by the hearing officer and the Regional Di-
rector, the production employees, janitorial employees,
and the employees in the four Maintenance Tech classifi-
cations are all hourly employees, and have the same
health and welfare benefits, 401(k) retirement benefits,
and leave benefits. All of these employees are subject to
the same employee handbook, which includes the Em-
ployer’s attendance and disciplinary policies.14 They
also follow the same parking and clock-in procedures.
Further, the record demonstrates that including the
Maintenance Techs effectively bridges many of the pre-
viously discussed gaps between the production and jani-
torial employees. Thus, the Maintenance Techs work in
the same department as the janitors and share common
supervision. Both the Maintenance Techs and the jani-
tors attend the same safety meetings. The work of the
Maintenance Techs is also functionally integrated with
the work of the production employees. Maintenance
Techs provide production-related support for the produc-
tion employees as they repair, and perform preventative
maintenance on, the machines production employees use.
The maintenance techs also manufacture a small number
of products (that are counted as part of the production
employee’s quota) in test-running repaired machinery,
and there is evidence that production employees perform

12 Although, as the Regional Director noted, the Odwalla Board did
not analyze whether the agreed upon inclusions were appropriate under
the first prong of Specialty Healthcare, that was only because the Od-
walla Board concluded that “even assuming” the stipulated inclusions
as construed were readily identifiable as a group and shared a commu-
nity of interest, the Employer had “carried its burden of proving that the
[group the employer sought to add and which voted subject to chal-
lenge] share an overwhelming community of interest with the included
employees.” Odwalla, Inc., 357 NLRB at 1611. Odwalla states that
the Board will treat the stipulated unit “as the petitioned-for unit” for
purposes of the analysis, not as the appropriate unit. Id at 1611 fn. 27.
In addition, we put aside the Specialty Healthcare framework at this
point because, as the Stipulated Election Agreement reflects, no party
claimed yet additional employees—that is, beyond the four specified
Maintenance Tech classifications—must be included in the unit to
make it appropriate. As noted, the Employer untimely sought to in-
clude the Maintenance Adjustment Coordinator after the election.
13 We observe that the parties’ stipulation contemplates only two al-
ternative units, and no party claims that a unit including the Mainte-
nance Tech classifications would violate the Act or established Board
policy.
14 The record does not disclose the employees’ relative wage scales.
some preventative maintenance themselves. Although
there is no interchange, the Maintenance Techs have
some contact with the production employees: Mainte-
nance Techs sometimes ask the production employees to
describe the problem they are experiencing; production
employees sometimes verify that a successful repair has
been made in the presence of Maintenance Techs; and
Maintenance Techs also sometimes instruct production
employees about how the machinery should be operated
to avoid problems. In addition, the Maintenance Techs
work alongside a small number of production workers in
performing certain weekend maintenance projects. Most
of the approximately 20 Maintenance Techs work similar
hours to the production employees, though at least 3
Maintenance Techs either start earlier or stay later.15
On those facts, we agree with the hearing officer that
employees in the four specified Maintenance Tech classi-
fications share a sufficient community of interest with
the production and janitorial employees. Indeed, includ-
ing the Maintenance Techs effectively ties the unit to-
gether, creating in particular a degree of functional inte-
gration that was missing between the production and
janitorial employees alone. It is thus appropriate to in-
clude them in the unit. We therefore reverse the Region-
al Director’s decision to sustain the challenges to their
ballots, including the ballots placed in the two unmarked
envelopes. Accordingly, we vacate the certification and
remand the case to the Regional Director to open and
count the 18 challenged ballots cast by the Maintenance
Techs in the four classifications that the parties agreed
should vote subject to challenge.16

15 As noted, the hearing officer rejected the Employer’s contention
that the janitors should be excluded from the unit, and the Petitioner’s
contention that if the stipulated unit were found to be inappropriate, the
appropriate solution to make the unit appropriate is to exclude the jani-
tors, rather than to include the Maintenance Techs. We agree with the
hearing officer (and the Regional Director) that excluding the janitors
would be contrary to the parties’ stipulation, which specifically provid-
ed for the inclusion of the janitors, and left only the status of the four
Maintenance Tech classifications in dispute. The parties’ stipulation
did not provide for the janitors to vote subject to challenge, for their
ballots to be segregated, or for them to be excluded in the event that the
ballots cast by the Maintenance Techs were determinative and the
Board were to find that the unit of janitors and production employees
was inappropriate.
16 Chairman Miscimarra disagrees with the Specialty Healthcare
standard. See Macy’s Inc., 361 NLRB No. 4, slip op. at 25–32 (2014)
(Member Miscimarra, dissenting). Thus, Chairman Miscimarra does
not join in or rely on any aspect of the majority’s discussion of Special-
ty Healthcare and standards arising under that case. He nevertheless
finds, in agreement with his colleagues, that applying traditional com-
munity of interest factors, the stipulated unit of “production employees”
is not appropriate, and further finds that the four classifications of
Maintenance Techs share a community of interest with the stipulated
inclusions (that is, the production and janitorial employees) under tradi-
tional community of interest principles. Thus, he agrees with his col-
K&N ENGINEERING, INC. 5
ORDER
The certification is vacated. It is directed that the Re-
gional Director for Region 21 shall, as soon as practica-
ble, from the date of this Decision and Order, open and
count the ballots of Alejandro Davila Jr., Harry Evans,
Hector Irizarry, Ross Leja, Paul Likhterman, Thomas
Manning, Richard Mejia, Douglas Morgan, Kevin
Murphy, Samuel Nevarez Jr., Brian Nichols, Paul
Ochoa, Christopher Panos, John Sanchez, Rene Solorio,
Robert Vasquez, Jan Spencer Jr., and Raymundo
Vasquez Jr. The Regional Director shall serve on the

leagues that it is appropriate to include the four classifications of
Maintenance Techs in the unit, and joins his colleagues in vacating the
certification and remanding the case to the Regional Director to open
and count the 18 challenged ballots cast by the Maintenance Techs in
the four classifications that the parties agreed should vote subject to
challenge. Finally, Chairman Miscimarra joins his colleagues in deny-
ing the Employer’s request for review in all other respects.
parties a revised tally of ballots and issue the appropriate
certification.
Dated, Washington, D.C. October 12, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD