Pep Boys-Manny, Moe & Jack

National Labor Relations Board - Board Decisions

Jun 30, 2003

339 N.L.R.B. 421 (N.L.R.B. 2003)

PEP BOYS–MANNY, MOE & JACK 421
Pep Boys–Manny, Moe and Jack and International
Association of Machinists and Aerospace Work-
ers, AFL–CIO, Petitioner. Case 10–RC–15342
June 30, 2003
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered a determinative challenge
in an election held December 11, 2002,1 and the hearing
officer’s report recommending disposition of it. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 5 for and 4
against the Petitioner, with 1 challenged ballot.
The Board has reviewed the record in light of the ex-
ceptions2 and brief and has decided to adopt the hearing
officer’s findings and recommendation only to the extent
consistent with this Decision and Direction.
The Employer has excepted to the hearing officer’s
recommendation that the challenge to the ballot of Aaron
Dishman be sustained. For the reasons set forth below,
we find merit in this exception.
Dishman transferred from a nonunit position to a unit
installer position effective November 3, during the pay-
roll eligibility period.3 The hearing officer credited the
testimony of the Employer’s service manager, Donald
Warfield, that during the eligibility period Warfield spent
45 minutes to an hour on each of 3 days (November 6, 8,
and 9) training Dishman, and that during this time Dish-
man performed some unit work such as balancing,
mounting, and dismounting customers’ tires. Neverthe-
less, the hearing officer found that Dishman was not
“working” in the unit and thus was ineligible to vote,
characterizing Dishman’s bargaining unit work during

1 All dates hereafter are in 2002 unless otherwise noted.
2 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
3 The payroll eligibility period ended on November 9.
The bargaining unit is as follows:
All regular full-time and part-time master technicians, technicians,
mechanics, installers, service advisors, and senior service advisors
employed by the Employer at its facility located at 5845 Brainerd
Road in Chattanooga, Tennessee, but excluding all office clerical em-
ployees, professional employees, managerial employees, guards and
supervisors as defined in the Act.
the eligibility period as “orientation and preliminaries” in
preparation for the installer job which began “in earnest”
the following week.
We disagree with the hearing officer. It is well settled
that in order to be eligible to vote an individual must be
“employed and working” in the bargaining unit on the
established eligibility date, unless absent for certain
specified reasons. Dyncorp/Dynair Services, 320 NLRB
120 (1995). The Board defines “working” as the actual
performance of bargaining unit work. Id.
In Dyncorp/Dynair, an employee in the process of
transferring from a nonunit position to a unit position
performed some unit work while participating in 2 days
of on-the-job training during the eligibility period. The
Board found the employee eligible to vote, relying on the
employee’s actual performance of unit work during the
eligibility period. The Board distinguished cases in
which challenged voters’ training consisted of mere “ori-
entation and preliminaries” and they performed no unit
work.4 The Board stated, “An employee’s performance
of unit work is an objective fact that can be easily ascer-
tained. Thus, we will not speculate whether an employee
performing unit work is or is not receiving ‘training.’”
Id. at 121. In sum, the employee’s performance of unit
work during the eligibility period, as distinguished from
“orientation and preliminaries,” led to the Board’s find-
ing that the employee was “working” in the unit.
Here, the credited evidence establishes that during the
eligibility period Dishman performed actual unit work in
his on-the-job training. Thus, as in Dyncorp/Dynair,
supra, we find that Dishman was not engaged in mere
“orientation and preliminaries,” but was “employed and
working” in the unit during the eligibility period. Ac-
cordingly, we find that Dishman was eligible to vote, and
we shall direct that his ballot be opened and counted.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
10 shall, within 14 days from the date of this Decision
and Direction, open and count the ballot of Aaron Dish-
man, prepare and serve on the parties a revised tally of
ballots, and issue the appropriate certification.

4 F. & M. Importing Co., 237 NLRB 628, 632–633 (1978); Emro
Marketing Co., 269 NLRB 926 fn. 1 (1984), summary judgment
granted 272 NLRB 282 (1985), enfd. 768 F.2d 151 (7th Cir. 1985).

339 NLRB No. 58