Tom Kelly Ford, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 1080 (N.L.R.B. 1982)

I)1CISI()NS O()F NATIONAI L A()R RFI.A()IONS BOARI)
Tom Kelly Ford, Inc. and John Bircher, Petitioner,
and District 201, Local Lodge 1686, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Case 18-RD- 1104
September 30, 1982
DECISION ON REVIEW
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On August 7, 1981, the Regional Director for
Region 18 issued his Decision and Direction of
Election in the above-captioned proceeding in
which he directed an election among the Employ-
er's service department mechanics, Service writers,
body-shop employees, parts department employees,
and used-car reconditioning employees employed
at the Employer's Fort Dodge, Iowa, facility.'
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Union filed
a timely request for review of the Regional Direc-
tor's decision on the grounds that the Regional Di-
rector erred in finding, inter alia, that the unit al-
leged in the decertification petition was coextensive
with the currently recognized collective-bargaining
unit.
By telegraphic order dated September 2, 1981,
the National Labor Relations Board granted the
Union's request for review with respect to such
findings.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in
this case with respect to the issue under review,
and makes the following findings:
The Union contends that the currently recog-
nized unit encompasses only service department
mechanics, including the service writer, a position
currently vacant. We find merit in this contention.
The Employer is engaged in the retail sales and
service of new and used automobiles in Fort
Dodge, Iowa.
On February 25, 1963, following an election con-
ducted pursuant to an Agreement for Consent
Election, the Union was certified as the collective-
bargaining representative of all of the Employer's
service department and used-car department em-
ployees, including mechanics, partsmen, lubrication
men, and used-car reconditioning employees. At
that time, the Employer did not operate an auto
body shop and it sublet the bulk of the bodywork.
I'he election was held o(n September 2. 1981, and the ballots were
impounded pending the outcome ,of these proceedings.
264 NLRB No. 143
Since 1964, the Employer and the Union have
entered into a series of collective-bargaining agree-
ments, with varying recognition clauses. The rec-
ognition clause in the first agreement, effective
from December 10, 1964, through September 30,
1967, described the unit as covering journeymen
mechanics, specialists, and "all others." Present in
this initial agreement, and in all subsequent agree-
ments, is an article on tool usage which provides
that
[N]o one shall be allowed to use tools to dis-
mantle, repair or rebuild motors, chassis, elec-
trical equipment, bodies or fenders except
Journeymen, Apprentices and working fore-
men.
In approximately November 1966, the Employer
moved to its present facility, and began a body-
shop operation in February 1967. There was no
discussion between the Employer and the Union
about including the body-shop employees under
the existing collective-bargaining agreement. Ap-
parently, sometime in 1967, the Union's pension
fund, headquartered in Washington, D.C., conduct-
ed an audit of the Employer's payroll, with the
result that the Employer was informed that it was
required to pay pension fund contributions for the
body-shop employees and the used-car recondition-
ing employees. The Employer complied, but it has
excluded Donald Summers, parts department em-
ployee, John Bircher, working foreman in the body
shop, and Kenneth Walsh, a service department
mechanic, as each has requested inclusion in the
National Automobile Dealers' Association Retire-
ment Pension Trust.
In the several collective-bargaining agreements
executed from September 1, 1968, through August
31, 1975, the recognition clauses described the unit
as covering journeymen mechanics, specialists, "all
others," and working foremen. In 1969, the Union
filed a grievance as to the termination of a former
used-car reconditioning employee. In June 1973,
the Union's pension fund requested contributions
for three employees: two car washers and a used-
car lot porter. Relying on the express contractual
exclusion of car washers and porters, the Employer
refused to pay the amount requested. The Union
did not contest the Employer's position, but noted
that the reference to "all others" in the recognition
clause should be clarified. The current used-car re-
conditioning employees perform duties similar to
the former car wash employees: washing, polishing,
and buffing cars, and masking and taping cars in
the body shop.2
2 The Employer, at sometime in the past, operated a mechanical car-
washing service. This service was ended because it proved unprofitable.
Continued
10(0
TOM KELLY FORD, INC.
The recognition clause in the collective-bargain-
ing agreement effective from September 1, 1975,
through August 31, 1978, differed from previous
recognition clauses as it described the unit as cov-
ering lead mechanics and mechanics A, B. C, and
D, and reference to "all others" was deleted. In the
most recent collective-bargaining agreement, effec-
tive September 1, 1978, through August 31, 1981,
the recognition clause sets forth the unit as "all em-
ployees classified in [the] agreement, including
service writers and excluding car washers, floor
salespersons, delivery boys [and] porters....
The recognition clause also provides that the Em-
ployer
. . .will negotiate with the Union during the
term of this agreement concerning any matter
involving the wages, hours and working con-
ditions of the employees which are not specifi-
cally provided for in [the] agreement.
Appendix A of the agreement sets forth the mini-
mum straight time wage rates for the classifications
of lead mechanic and mechanics A. B, C, and D.
Neither body-shop employees, parts department
employees, nor used-car reconditioners are express-
ly classified anywhere in the agreement, nor are
their wage rates set forth.
The service department mechanics work from 8
a.m. to 5 p.m., with 15-minute breaks, strictly en-
forced, at 10 a.m. and 3 p.m. They are required to
punch in and out when arriving at and leaving
from work. The service department mechanics are
paid on an hourly basis, as set forth in the agree-
ment's Appendix A, supplemented by an Employ-
er-developed incentive plan, which provides the
mechanic with a percentage of his hours billed. Va-
cations must be scheduled in advance and cleared
by the Employer's front office.
The body-shop employees work a flexible work-
day, and do not punch a timeclock. These employ-
ees generally are free to leave when their work is
completed, even if it is not yet 5 p.m., and they
may stay later if they choose or may return after
normal hours to complete unfinished work. The
body shop is generally allowed to schedule its own
breaktimes. In practice, the breaks begin at roughly
10 a.m. and 3 p.m., but regularly are extended
beyond 15 minutes. The body-shop employees are
paid a salary, which is supplemented by the Em-
ployer's "Shop-Trak" incentive plan, developed by
the Employer and other area car dealers. The in-
centive plan calls for the body-shop employees to
receive, in addition to their base salary, 47-1/2 per-
During this operation the Employer employed used-car reconditioners, in
addition to car washers As noted above, employees in both classifica-
tions performed virtually the same job functions
cent of billed labor or $8.88 an hour, whichever is
greater. The rate of $8.88 per hour corresponds to
the journeyman mechanic's rate, which is the
lowest in the service department. This percentage
rate was recently unilaterally decreased from 50 to
47-1/2 percent by the Employer. Employees in the
body shop notify John Bircher of their vacation
plans, and he coordinates the schedule. The front
office is generally not notified of the vacation until
the employee's worksheet for the period is submit-
ted. There was no evidence as to the terms and
conditions of employment of the parts department
employees or the used-car reconditioning employ-
ees.
Service department employees have unsuccess-
fully solicited body-shop employees to join the
Union. Only service department mechanics are in-
vited to attend union meetings and participate in
contract ratifications. While the Union has filed
several grievances on behalf of service department
mechanics, it has not filed any grievances on behalf
of the body-shop or parts department employees,
and it has filed no grievances on behalf of used-car
reconditioning employees since 1969.
The Regional Director, in finding the body-shop
employees, the parts department employees, and
the used-car reconditioning employees to be part of
the currently recognized bargaining unit, relied on
the recognition clause language allegedly compel-
ling the Employer to negotiate with the Union
over the terms and conditions of employment of
the employees not specifically provided for in the
agreement, and on the Employer's pension fund
contributions to the Union on behalf of the em-
ployees in the disputed classifications. The Region-
al Director also relied on the parts department em-
ployees' and the used-car reconditioning employ-
ees' inclusion in the certified unit. With respect to
the body-shop employees, the Regional Director
also found that the tool usage provision of the
agreement expressly extended the agreement's cov-
erage to the body-shop employees, and thereby in-
cluded them in the unit. Our analysis of the record
leads us to the conclusion, contrary to the Regional
Director, that body-shop employees, parts depart-
ment employees, and used-car reconditioning em-
ployees are not part of the currently recognized
bargaining unit.
It is well established that the scope of the unit in
a decertification election must be coextensive with
the certified or currently recognized bargaining
unit, unless the unit is contrary to the statute or es-
tablished Board policy.a If the parties have, by
I Kardon C(hevrolet. Inc., 249 N RB 598 (198X): ULtah Power d Light
Cornpany, 258 NL RB 1059 (1981)
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement, changed the scope of the bargaining
unit, then it is that unit which is the appropriate
unit for a decertificatior election.4
Here, although the used-car reconditioning em-
ployees and the "partsmen" were in the original
certified unit, and the tool usage provision applies
restrictions to all employees, it seems clear to us
that the three classifications in question are not part
of the currently recognized unit. None of the three
classifications has ever been specifically included in
recognition clauses of any of the contracts, past or
present. In this regard, the used-car reconditioning
employees' job functions are virtually identical to
those of employees who in the past were classified
as car washers who are expressly excluded in the
most recent agreement.
Further, although the tool usage clause speaks of
body repair work, it has remained unchanged since
its inclusion at a time when the Employer in fact
did not operate a body shop and sublet the bulk of
its bodywork. Moreover, on opening its own body
shop in 1967, the Employer did not speak with the
Union about extending the existing agreement's
coverage to the body shop, and hired only new
employees to work in the body shop. With the ex-
ception of pension fund payments on their behalf,
the Employer has not extended the coverage of the
agreement to the body-shop employees, i.e., unlike
the covered employees, body-shop employees have
flexible hours of work and breaktimes, and a differ-
ent wage scale and method of scheduling vaca-
tions. 5
Additionally, with only one exception, there
have been no grievances filed by the body-shop
employees, and union stewards, without exception,
have been mechanics. That there was confusion on
the part of both the Union and the Employer as to
who was covered by the agreements is clear. As
indicated, the Union noted that the term "all
others" in the recognition clause had to be clari-
fied, as it had resulted in the Union's pension fund
administrators requesting pension payments for car
4 See's Candy Shops, 231 NL.RB 156, 157, and cases cited at fn. I
(1977).
5 While the Petitioner, John Bircher, initially testified that these terms
and conditions of employment were in compliance with the collective-
bargaining agreement, he later conceded that he had never read the
agreement
washers. The Employer contended the car washers
were excluded, a contention which the Union did
not contest. However, the term "all others" was
deleted in the next agreement, because, as Employ-
er's owner and president, Tom Kelly, testified, it
could not be "successfully explained" who was
covered by it. It was also in this agreement that the
recognition clause was radically altered to specify
as included the lead mechanics and mechanics A,
B, C, and D.
Contrary to the Regional Director, we do not
read the most recent recognition clause as requir-
ing the Employer to bargain with the Union over
the terms and conditions of employment for em-
ployees who are not covered by the agreement-
i.e., the three disputed classifications-but, rather,
for only those employees who are specifically cov-
ered. For, in our view, the word "which" in the
clause refers to "wages, hours and working condi-
tions," not "employees." There is no evidence that
the Employer and the Union have negotiated over
the terms and conditions of the employees in the
three disputed classifications since the execution of
the most recent agreement. Significantly, the Em-
ployer thought it unnecessary to notify or discuss
with the Union its change in the body shop's incen-
tive plan.
On the basis of the foregoing, we find that the
body-shop employees, parts department employees,
and used-car reconditioning employees are not in-
cluded in the currently recognized bargaining unit.
We find, therefore, that the following employees
constitute the appropriate unit herein:
All service department mechanics, including
the service writer, employed at the Employer's
Fort Dodge, Iowa facility; excluding all car
washers, floor salespersons, delivery boys, por-
ters, body shop employees, used-car recondi-
tioning employees, parts department employ-
ees, office clericals, guards and supervisors as
defined in the Act.
Accordingly, the case is remanded to the Re-
gional Director for the purpose of opening and
counting the ballots cast by employees in the unit
found appropriate herein, and to issue the appropri-
ate certification.
1082