U.S. Pollution Control, Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1986

278 N.L.R.B. 274 (N.L.R.B. 1986)

274 U.S. POLLUTION CONTROL, INC.
U.S. Pollution Control, Inc. and International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local No.
222, Petitioner. Case 27-RC-6554
29 January 1986
DECISION AND DIRECTION
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
The National Labor Relations Board, by a three-
member panel, has considered objections to and de-
terminative challenges in an election held on 11
July 1985 and the Acting Regional Director's
report recommending disposition- of them. The
election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows
nine for and seven against the Petitioner, with
three challenged ballots.
The Board has reviewed the record in light of
the exceptions 1 and brief and adopts the Acting
Regional Director's findings and recommendations
as modified below.
Two of the three challenges were made by the
Petitioner to the ballots of Randy Shephard and
Royle Jensen. The Acting Regional Director sus-
tained the challenge to, Randy, Shephard's ballot on
the grounds that he was a supervisory, managerial,
and/or a "full-time sales" employee.2 The Employ-
er excepts to this finding, contending that She-
phard is an employee who is properly included in
the unit.3
We agree with the Acting Regional Director
that the challenge to Shephard's ballot should be
sustained, but we do so for the following reasons.
Shephard is employed by the Employer at its
Salt Lake City, Utah operation as a pollution con-
trol specialist attached to its Special Services/Small
Operator program. He is the only such specialist
employed at the Salt Lake City operation. His job
is to pick- up, manifest, and transport small quanti-
ties of hazardous waste in Oklahoma, Idaho, Wyo-
ming, and Utah, with most of his time being spent
within 100 miles of Salt Lake City. In performing
these duties, he drives a pickup truck.
1 The Employer excepts only to the Acting Regional Director's find-
ings regarding the determinative challenges No exceptions were filed to,
and we adopt, pro forma, the Acting Regional Director's dismissal of the
objections.
2 The stipulated appropriate unit consists of "All employees employed
by the Employer at its Salt Lake City and Grassy Mountain-Clove, Utah,
facilities, BUT EXCLUDING all guards, office clericals, full-time sales-
men, professional employees, and supervisors as defined in the Act "
(Emphasis added)
8 No exceptions were filed to, and we adopt, pro forma, the Acting
Regional Director's overruling of the Petitioner's challenge to Royle Jen-
sen's ballot.
When Shephard needs assistance in this work his
first option is to contact his immediate supervisor-
the Employer's Oklahoma City-based manager of
Special Services, Charles Soukup-who will send
Oklahoma City-based Special Services employees
to assist Shephard if available. If no such employ-
ees are available, Shephard's second option is to
use one or both of two casual employees employed
at the Salt Lake City operation. Both casuals were
initially interviewed by Shephard who recommend-
ed to Soukup that they be hired. Soukup subse-
quently hired them after reviewing their employ-
ment applications. If the casuals also are not avail-
able, the job is abandoned or postponed; none of
the full-time drivers or mechanics employed at the
Salt Lake City operation are ever called upon to
assist Shephard.
Additionally, Shephard devotes approximately
50 percent of his time to sales-related duties, con-
tacting existing and potential customers and re-
sponding to their inquiries regarding the Employ-
er's services. In this capacity, he also bids work for
the Employer after consultation with Special Serv-
ices supervision in Oklahoma City.
Shephard is paid a monthly salary. Unlike other
employees at the Salt Lake City operation, he does
not punch a timeclock, is not paid overtime, and
receives sick benefits. Unlike other employees, he
also has an assigned office area.
Based on the foregoing, contrary to the Acting
Regional Director, we cannot conclude that She-
phard is a supervisory, managerial, and/or a "full-
time sales" employee. Although Shephard inter-
viewed and recommended hiring the casuals who
assist him, this does not necessarily constitute su-
pervisory authority, particularly where, as here,
Shephard's supervisor made the final hiring deci-
sion after an independent review of 'the casuals'
employment applications. Rather, the circum-
stances indicate that Shephard's role was merely to
ensure that he was personally compatible with
those who would be hired to assist him.4 Nor does
the fact that Shephard bids work for the Employer
make him a managerial employee absent evidence
that he exercises significant independent discretion
and authority in doing so.5 Here, Shephard con-
sults with corporate headquarters before making
bids. Finally, Shephard is clearly not a "full-time
sales" employee as he only spends approximately
50 percent of his time on sales-related duties.
Nevertheless, it remains that Shephard spends
approximately 50 percent of his time doing nonunit
sales work and, as found by the Acting Regional
4 See, e g, Willis Shaw Frozen Foods Express, 173 NLRB 487 (1968)
s See, e g., Bell Aerospace, 219 NLRB 384 (1975)
278 NLRB No. 42
U.S. POLLUTION CONTROL, INC.
Director, does not share a community of interest'
with unit employees. Thus, as outlined above,
unlike unit employees Shephard does not punch a
timeclock, is not paid overtime, and receives sick
leave benefits. Further, Shephard's immediate su-
pervisor is Special 'Services Manager Soukup,
while all other Salt Lake City-based employees. are
supervised by the terminal manager in Salt Lake
City. Finally, unit employees are never called upon
to assist Shephard, and Shephard never performs
the work of the unit employees.6 Accordingly, we
conclude that Shephard is properly excluded from
the unit as a dual function employee who does not
share a community of interest with unit employ-
ees.7
The remaining ballot, that of Larry Bogue, was
challenged by the Board agent who conducted the
election on the grounds that his name did not
appear on the eligibility list. Bogue was discharged
by the Employer on 30 May 1985. A complaint
subsequently issued in Case 27-CA-9270 alleging
that his discharge violated Section 8(a)(1) and (3)
of the Act. In view of this, the Acting Regional
Director found that a recommendation as to
Bogue's eligibility could not be made. However,
during the Acting Regional Director's investiga-
tion, Bogue executed an affidavit waiving his right
to a secret ballot and requesting that his ballot be
opened and counted to resolve the election, if pos-
sible, without waiting for resolution of the unfair
labor practice proceeding. The Acting Regional
6 Although there are drivers in the umt, they drive semitrailer trucks
while Shephard drives pickup trucks
7 See Landing Construction Co., 273 NLRB 1288 (1984).
275
Director rooted that, assuming his recommendation
to exclude Shephard was adopted, the Petitioner
could lose the election only if Bogue was eligible
and both he and Royle Jensen `voted against Peti-
tioner. Accordingly, the Acting Regional Director
concluded that opening and counting the chal-
lenged ballots before resolution of Bogue's eligibil-
ity was proper, albeit after commingling them in
the interest of preserving the secrecy of both. We
agree and shall so direct.8
DIRECTION
Case 27-RC-6554 , is . remanded to the Regional
Director for Region 27. The Regional Director
shall commingle and open the ballots of Royle
Jensen (the challenge to his ballot having been
overruled) and Larry Bogue. The Regional Direc-
tor shall determine if - any one of these, ballots is
cast for the Petitioner. If so, and without issuing a
revised tally of ballots, the Regional Director shall
certify the Petitioner. If,' however, both ballots are
cast against the Petitioner, the issue of alleged dis-
criminatee Bogue's eligibility shall be consolidated
with the hearing scheduled in= Case 27-CA-9270.
If, upon the outcome of Case 27-CA-9L270, Bogue
is found to have been lawfully terminated and thus
ineligible to vote, the Regional Director shall certi-
fy the Petitioner. If, however, Bogue, having voted
against the Petitioner, is found .to have been unlaw-
fully terminated and thus eligible to vote, the Re-
gional Director shall certify the results of the elec-
tion.
8 See Garrity Oil Co, 272 NLRB 158 (1984).