Lear Siegler

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 372 (N.L.R.B. 1987)

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.