Medlar Electric, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 2002

337 N.L.R.B. 796 (N.L.R.B. 2002)

796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Medlar Electric, Inc. and Bohrer Reagan Co. Joint
Employers and Teamsters Local Union No. 429,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America Petitioner. Case 4–RC–20249
July 18, 2002
DECISION ON REVIEW AND DIRECTION
BY CHAIRMAN HURTGEN AND MEMBERS COWEN
AND BARTLETT
On August 23, 2001, the Acting Regional Director for
Region 4 issued a Decision and Direction of Election in
the above-entitled proceeding, in which he found the
petitioned-for unit of the Joint Employer’s full-time and
part-time truckdrivers to be an appropriate unit for col­
lective bargaining. The Joint Employers contended that
three warehouse employees and the heavy equipment
operator also should be included in the unit because they
were dual-function employees who regularly performed
unit work. The Acting Regional Director included Gary
Adams, a warehouse employee who spends approxi­
mately 30 to 40 percent of his time driving a pickup
truck to transport supplies or equipment. He excluded
three others: Bruce Brooks, the heavy equipment opera-
tor, and warehouse employees Eric Sanders and Thomas
Luckenbill whose driving duties constitute only 10 to 15
percent of their worktime.
Thereafter, the Joint Employers filed a timely request
for review of the Acting Regional Director’s decision,
contending that he erred in excluding Brooks, Sanders,
and Luckenbill. On September 19, 2001, the Board de­
nied the Joint Employers’ request for review, but
amended the decision to permit Brooks to vote under
challenge. The election was held September 20, 2001.
The tally was three for and two against the Petitioner,
with three determinative challenged ballots.1
On October 11, 2001, the Regional Director issued a
supplemental decision on challenged ballots and certifi­
cation of representative in which she sustained the chal­
lenges to all three ballots. In so doing, the Regional Di­
rector affirmed the earlier decision to exclude Brooks,
and noted that Sanders and Luckenbill previously had
been found to be ineligible to vote and that the Board had
denied review of the determination. She, therefore, certi­
fied the Petitioner as the exclusive representative of the
Joint Employers’ truckdrivers.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regulations,
the Joint Employers filed a timely request for review of
the Regional Director’s supplemental decision, contend-
1 The Petitioner challenged the ballots of Sanders and Luckenbill.
ing that the Regional Director erred in finding that Bruce
Brooks is not an eligible voter. The Petitioner filed a
statement in opposition.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We grant the Joint Employers’ request for review of
the Regional Director’s supplemental decision. Having
carefully considered the entire record, we find, for the
reasons set forth below, that Bruce Brooks is a dual-
function employee who has a sufficient interest in the
unit’s conditions of employment to be included in the
unit.
Medlar Electric performs electrical construction work
primarily on public sector jobs, such as schools and
treatment plants. Bohrer Reagan performs mechanical
construction work, including the installation of air condi­
tioning and heating systems. The Joint Employers em-
ploy approximately 280 workers, including 160 electri­
cians represented by the International Brotherhood of
Electrical Workers. They employ four full-time truck-
drivers who primarily use 8 to 10 trucks to transport
equipment and materials between the Joint Employers’
warehouse and various jobsites.2 Medlar’s two full-time
drivers transport generators, lights, and conduits in large
stake and small stake body trucks (20- and 12-foot beds
respectively). Bohrer’s two full-time drivers transport
materials and equipment, such as ductwork or air condi­
tioning units, in large stake body trucks or in closed box
trucks, which have 21-foot beds. The drivers load their
trucks at the warehouse each morning and make four to
five deliveries per day. When they have completed their
deliveries, they return to the warehouse where they may
perform other duties, such as cleaning the warehouse or
assisting warehouse employees in moving materials.3
Bruce Brooks operates all of the Joint Employers’
heavy equipment (including the backhoe and bobcat),
and performs most of the trenching work and any of the
excavation work needed to be done. Brooks also holds a
commercial driver’s license that allows him to use the
dump truck to tow necessary equipment to the appropri­
ate jobsite. He uses the dump truck to load and unload
dirt and stone, and he drives a pickup truck to transport
material necessary for the concrete work. Brooks also
transports or “hauls” some tools to various jobsites, when
the weight limit is over what light trailers will pull (e.g.,
2 The Joint Employers have 100 vehicles, the majority of which are
pickup trucks used by the electricians.
3 In addition, warehouse employee Gary Adams spends 30 to 40 per-
cent of his worktime driving. He generally drives a pickup truck every
day to transport supplies or equipment from local supply stores. Also,
Adams may deliver tools directly to local jobsites and tow job trailers
and large equipment and/or hydraulic lifts to jobsites.
337 NLRB No. 133
MEDLAR ELECTRIC, INC. 797
30,000–40,000 lb. lifts). According to the Joint Employ­
ers’ president and owner, Kenneth Field, Brooks typi­
cally spends approximately 25 to 30 percent of his time
in the dump truck and most of his remaining worktime
doing construction work.4
Based on the foregoing, we conclude, contrary to the
Regional Director, that Brooks, like Adams, is a dual-
function employee who regularly performs unit work for
sufficient periods of time to demonstrate that he has a
substantial interest in the unit’s wages, hours, and condi­
tions of employment. See Continental Cablevision of St.
Louis County, Inc., 298 NLRB 973 (1990); Berea Pub­
lishing Co., 140 NLRB 516, 519 (1963). Thus, like the
unit truckdrivers who transport equipment and materials
between the warehouse and various jobsites, Brooks per-
forms similar unit work when he tows or hauls tools and
4 In the affidavit submitted by the Joint Employers in the challenged
ballot proceeding, Brooks states that he spends 40 to 45 percent of his
time driving. For purposes of this decision, we need not resolve this
discrepancy.
The Regional Director, in excluding Brooks, noted that Brooks op­
erated a dump truck, unlike the other drivers who hauled materials and
equipment. However, the unit involved herein is “ all full-time and
part -time truck drivers.” (Emphasis added.)
equipment to jobsites to be used both in his construction
excavation work and by the Joint Employers’ other em­
ployees in their electrical and mechanical construction
work. In light of the fact that Brooks performs such unit
work at least 25 to 30 percent of his time, we find that
he, like dual-function driver Adams, regularly performs
unit work for a sufficient period of time to demonstrate
that he has a substantial interest in the unit’s wages,
hours, and conditions of employment.
Accordingly, we reverse the Regional Director and
overrule the challenge to the ballot of Bruce Brooks. We
shall remand this case to the Region for the purpose of
opening and counting Brooks’ ballot, preparing a revised
tally of ballots, and issuing the appropriate certification.
DIRECTION
It is directed that the Regional Director for Region 4
shall, within 14 days from the date of the Decision and
Direction, open and count the ballot of Bruce Brooks.
The Regional Director then shall serve on the parties a
revised tally of ballots, and issue the appropriate certifi­
cation.