USF Reddaway, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 2007

349 N.L.R.B. 329 (N.L.R.B. 2007)

USF REDDAWAY, INC.
349 NLRB No. 32
329
USF Reddaway, Inc. and Teamsters Local 962, affili-
ated with the International Brotherhood of
Teamsters, Petitioner. Case 36–RC–6340
January 31, 2007
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held April 18, 2006, and the administrative
law judge’s supplemental report recommending disposi-
tion of them.1 The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 9 votes for and 8 against the Petitioner, with 3
determinative challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the judge’s findings
and recommendations only to the extent consistent with
this Decision.2
At issue are the Petitioner’s challenges to the ballots of
Robert A. Burk, Matthew A. Heading, and William Mel-
zer. We agree with the judge’s recommendation to sus-
tain the challenges to the ballots of Burk and Heading on
the basis that they are supervisors.3 However, we reverse
the judge’s recommendation to sustain the Petitioner’s
challenge to Melzer’s ballot on the basis that his classifi-
cation, “parts/mechanic,” was not included in the stipu-
lated bargaining unit. Instead, we find that the stipula-
tion was ambiguous and, ultimately, that Melzer shares a
community of interest with the unit employees. We
therefore overrule the challenge to Melzer’s ballot and
direct that it be opened and counted.
The Challenge to William Melzer’s Ballot
In their Stipulated Election Agreement, the parties
agreed to the following unit:
All mechanics, fuelers, truck washers, truck inspectors,
trailer mechanics and tire persons employed by the
Employer at its Central Point, Oregon facility; exclud-

1 The judge granted the Petitioner’s and the Employer’s joint motion
to withdraw their respective objections.
2 Pursuant to Reliant Energy, 339 NLRB 66 (2003), the Employer
was permitted to call the Board’s attention to its recent decision in
Croft Metals, Inc., 348 NLRB 717 (2006).
3 In agreeing with the judge’s recommended finding that Burk and
Heading are supervisors, we rely only on his findings that they have
effectively recommended hiring. We therefore find it unnecessary to
pass on his further findings that Burk and Heading responsibly direct
the work of unit employees, that they evaluate employees, and that they
grant employees time off.
Chairman Battista relies on the effective recommendations as to hir-
ing, the evaluations of employees and on the grants of time off.
ing all office clerical employees, drivers, guards, and
supervisors as defined in the Act and all other employ-
ees.
The judge found that Melzer’s job title,
“parts/mechanic,” did not fall unambiguously within the
stipulated bargaining unit’s inclusions. Relying on Hal-
sted Communications,4 the judge reasoned that the stipu-
lated term included in the unit is “mechanic” and the job
title “parts/mechanic” was not specifically included. The
judge noted that the stipulated unit description contains a
broad exclusion from the unit of “all other employees,”
and therefore recommended sustaining the challenge to
Melzer’s ballot.
Alternatively, the judge found that if the Board con-
cluded that the unit stipulation was ambiguous with re-
spect to the parts/mechanic position, Melzer should be
included in the unit based on his community of interest
with unit employees.
The Employer excepts to the judge’s recommendation
to sustain the challenge to Melzer’s ballot. The Em-
ployer argues that Melzer’s classification was unambigu-
ously included in the stipulated unit. In the alternative,
the Employer contends that the unit description in the
Agreement is ambiguous and, therefore, the Board is
required to look at extrinsic evidence and if necessary
apply the community-of-interest test. In the Employer’s
view, both the extrinsic evidence and the community-of-
interest factors require including Melzer in the stipulated
bargaining unit. For the following reasons, we find that
Melzer should be included in the unit.
In order to determine whether a challenged voter is
properly included in the stipulated unit, the Board applies
the three-step test set forth in Caesar’s Tahoe, 337
NLRB 1096 (2002). Under this test:
[T]he Board must determine whether the stipulation is
ambiguous. If the objective intent of the parties is ex-
pressed in clear and unambiguous terms in the stipula-
tion, the Board simply enforces the agreement. If,
however, the stipulation is ambiguous, the Board must
seek to determine the parties’ intent through normal
methods of contract interpretation, including the ex-
amination of extrinsic evidence. If the parties’ intent
still cannot be discerned, then the Board determines the
bargaining unit by employing its normal community-
of-interest test.
Id. at 1097.

4 347 NLRB 225 (2006) (finding “contractor technician supervisors”
not included in stipulated unit that specifically included “installation
technicians, including technician trainees” and specifically excluded
“all other employees”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD330
To determine whether the stipulated unit is ambiguous,
the first part of the Caesar’s Tahoe analysis, the Board
compares the express language of the stipulated unit with
the disputed classifications. Bell Convalescent Hospital,
337 NLRB 191 (2001) (citing Viacom Cablevision, 268
NLRB 633 (1984)). The Board will find a clear intent to
include those classifications that match the express lan-
guage, and will find “a clear intent to exclude those clas-
sifications not matching the stipulated bargaining unit
description.” Bell Convalescent Hospital, supra at 191.
The problem in this case is that the unit description in
the stipulation does not match the actual classifications
of the Employer. The Employer’s classifications are
mechanic/fueler, mechanic/floater, parts/mechanic,
fuel/tire/trailer employee, and equipment washer/general
helper. If the stipulation were read literally, the unit
would exclude all of these employees, for no such job is
included in the stipulation. A more reasonable reading
would be that all of these classifications were meant to
be included, i.e., that the parties used shorter job designa-
tions in the stipulation. Under this approach, the
parts/mechanic would be included in the unit, under the
term “all mechanics.” However, even this interpretation
is not supported by unambiguous language in the unit
description. Thus, if the phrase “all mechanics” was
meant to include all mechanic positions, why does the
unit description also separately list the trailer mechanic
position. In these circumstances, we find that the lan-
guage of the stipulation is unclear as to the parties’ intent
concerning Melzer’s unit status.5
Halsted, cited by the judge, is not to the contrary.6
There, the unit included all “full-time and regular part-
time installation technicians, including technician train-
ees,” but excluded “[a]ll other employees.” The disputed
employees’ classification was “contractor technician
supervisors.” The Board found that this classification
was not included in the express language of the unit de-
scription. Because there was an exclusion of “all other
employees,” it was clear the parties intended to exclude
the disputed position. However, unlike here, there was

5 Member Liebman would find that the language of the stipulation
“all mechanics” unambiguously includes Melzer, whose job title was
“parts/mechanic.” Viacom Cablevision, supra. Although she would
find it unnecessary to perform the remaining steps of the Caesar’s
Tahoe analysis, she concurs with her colleagues’ conclusions that no
extrinsic evidence as to the parties’ intent resolves the issue of Melzer’s
unit placement and that Melzer shares a community of interest with unit
employees.
6 We disavow the judge’s statement that our decision in Halsted
represents a more rigorous approach to evaluating stipulations.
Chairman Battista found that the stipulated unit was ambiguous in
Halsted. However, he agreed with the majority that the challenged
employees were properly excluded from the unit under a community-
of-interest analysis.
no gross disparity between the unit description and all of
the actual job classifications. We therefore find that the
parties’ intent as to parts/mechanic Melzer, based on the
stipulation alone, is unclear.
Thus, we next examine whether we can discern the
parties’ intent through usual methods of contract inter-
pretation, including looking to the extrinsic evidence.
The only extrinsic evidence presented here is the Peti-
tioner’s statement in the representation petition that the
unit contains 20 employees. Without Melzer’s inclusion,
the unit consists of only 19 employees. Thus, this evi-
dence supports the position of the Employer, although
not dispositively. Accordingly, we agree with the judge
that the record does not provide any extrinsic evidence
determinative of the parties’ intent regarding the inclu-
sion or exclusion of Melzer’s position.
We turn next to the community-of-interest test.
The judge found that if it was necessary to reach the third
step under Caesar’s Tahoe, the parts/mechanic shared a
community of interest with the other employees. We
agree. Based on the judge’s findings and reasoning, we
find that parts/mechanic Melzer is properly included in
the unit.
DIRECTION
It is directed that the Regional Director for Region 36
shall, within 14 days of the date of this Decision, Direc-
tion and Order open and count the ballot of William B.
Melzer. The Regional Director shall then serve on the
parties a revised tally of ballots and issue the appropriate
certification.
ORDER
It is ordered that the proceeding is remanded to the
Regional Director for Region 36 for further processing
consistent herewith.
Paul C. Hays, Esq., (Carney, Buckley, Hays & Marsh,) of Port-
land, Oregon for the Petitioner.
T. Merritt Bumpass Esq. Michael N. Chesney, Esq. (Frantz
Ward LLP) of Cleveland, Ohio for the Employer.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
ON CHALLENGES AND OBJECTIONS
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
this case in Medford, Oregon, on March 23, 24 ,and 25, 2006.
The matter arose as follows:
On March 8, 2006, the Teamsters Local 962, affiliated with
the International Brotherhood of Teamsters (the Petitioner)
filed a representation petition with Subregion 36 of the National
Labor Relations Board (the Board), docketed as Case 36–RC–
6340, seeking to represent certain employees of USF Red-
daway, Inc. (the Employer).
USF REDDAWAY 331
On March 20, 2006, the Regional Director for Region 19 ap-
proved a Stipulated Election Agreement directing a secret-
ballot election be held in the following unit of the Employer’s
employees (the unit):
All mechanics, fuelers, truck washers, truck inspectors, trailer
mechanics and tire persons employed by the Employer at its
Central Point, Oregon facility; excluding all office clerical
employees, drivers, guards and supervisors as defined in the
Act and all other employees.
The agreement provided that all procedures after the ballots
were counted would conform to the Board’s Rules and Regula-
tions.
The election was held consistent with the agreement on April
18, 2006, in Central Point, Oregon. The tally of ballots indi-
cated there were 9 votes in favor of representation and 8 votes
against representation with 3 challenged ballots. The chal-
lenged ballots were determinative of the election results. There-
after both the Petitioner and the Employer filed timely objec-
tions to the conduct of the election.
The Regional Director initiated a preliminary investigation
into the voting eligibility of the individuals whose ballots were
challenged and the election objections of each party. The Re-
port on Challenged Ballots, Objections, and Notice of Hearing
issued on May 4, 2006. The report became final in the absence
of exceptions. The Regional Director concluded that the chal-
lenges and objections raised substantial and material factual
issues, including credibility resolutions, which could best be
resolved by a hearing and directed that such hearing, be held.
The Regional Director’s report ordered that:
[A] hearing will be conducted before a duly appointed Hear-
ing Officer of the National Labor Relations Board on the is-
sues raised by the challenged ballots and objections to elec-
tion.
It further ordered that:
[T]he Hearing Officer designated to conduct the hearing shall
prepare and cause to be served on the parties a Report on
Challenged Ballots and Objections which will contain find-
ings of fact, including credibility resolutions and recommen-
dations to the Board concerning the disposition of the issues
involved.
The matter was thereafter assigned to me for hearing and the
hearing was held consistent with the Regional Director’s Re-
port on Challenged Ballots, Objections and Notice of Hearing
on March 23, 24, and 25, 2006.
Findings
On the entire record, including extensive and scholarly briefs
from the Petitioner and the Employer, I make the following
findings1

1 The findings are based on the record as a whole comprising the
transcript of testimony and exhibits augmented by the stipulations of
counsel at trial, the parties’ posthearing briefs, and the findings con-
tained in the Regional Director’s report.
I. OBJECTIONS
The Petitioner and the Employer each filed timely objections
to the conduct of the election. The Regional Director’s report
directed that a hearing be held and findings be made respecting
those objections. The hearing held on the instant matter was
structured by agreement of the parties so that the challenged
ballots would be litigated first. During that litigation, the par-
ties jointly moved to withdraw all their objections, i.e., both the
objections of the Petitioner and the Employer, and to continue
only with the challenge portion of the hearing.2
No evidence had been offered or received respecting the
merits of the objections and there was no evidence in the record
suggesting that a new election was necessary. Objections may
be adjusted by the voluntary agreement of the parties. Given
the joint motion and the absence of any evidence that the elec-
tion was not fairly conducted, I granted the joint motion and
accepted the withdrawal of each party’s objections.3
Given the parties’ motion and my granting of it, the objec-
tions were no longer in issue. However, in view of the Re-
gional Director’s order directing me to issue a report on both
the challenges and the objections, I will make formal findings
respecting the objections and will make a formal recommenda-
tion to the Board below.
II. THE CHALLENGED BALLOTS
The Regional Director’s report set forth the challenged bal-
lots in controversy:
The Petitioner challenged the ballots cast by Robert A. Burk
and Mathew A. Heading on the basis that they are supervi-
sors. In addition, the Petitioner challenged the ballot cast by
William B. Melzer on the basis that he is not in the bargaining
unit.
The challenges do not concern these individuals employment
during the appropriate eligibility period but rather whether or
not their job duties at relevant times fell within the bargaining
unit.

2 Because there was no counsel for the Regional Director involved in
the instant proceeding, the Regional Director was not a participant in
the hearing and did not know of or have an opportunity to take a posi-
tion of the joint motion.
3 The joint motion to withdraw the parties’ objections at the hearing
was voluntarily made, the parties were each represented by skilled and
experienced counsel and joined in the motion in full understanding of
the consequences of the withdrawal. No subsequent motion or position
has been taken by any party inconsistent with the withdrawal of the
objections. I find that the granting of such a joint motion and accep-
tance of the joint withdrawal of all objections at the time made, and in
the circumstances described, is within the authority of a hearing officer
holding postelection hearings under the Board’s Rules and Regulations
and the Regional Director’s report. I have considered and specifically
reject the proposition that only the Board and/or the Regional Director
has standing to grant such a motion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD332
A. Evidence Respecting the Challenges4
1. Background
The Employer is a trucking enterprise with a terminal in
Central Point, a suburb of Medford, Oregon. Associated with
that operation, the Employer operates a separately housed
maintenance and repair facility (the Shop) which inspects,
maintains, services, and repairs the Employer’s west coast trac-
tors as well as trailers, dollies, and associated equipment. The
Shop operates on a multishift 24-hour a day, 6-day a week basis
with staff on-call on Sundays when the facility is closed.
In essence the Shop fuels and inspects arriving equipment,
does regular maintenance on a significant fleet of tractors and
trailers, and repairs damaged equipment. The Shop building
has exterior fueling and inspection areas and has a series of
internal mechanic’s trailer and tractor bays for the maintenance
and repair of equipment. The Shop building also has a parts
area and office for the Shop manager as well as break and rest
room facilities.
The Shop manager for the past 2 years has been James Ham-
ilton. Although reporting to higher terminal and company au-
thority, Hamilton is the sole manager at the Shop. He is sala-
ried and receives management fringe benefit compensation.
Under Hamilton are all the Shop employees comprising ap-
proximately 20 individuals working a 3-shift, 24 hours per
day/6 days a week schedule. There are no other employees.
Hamilton does not have a secretary or assistant. The titles and
duties of the other Shop employees are described below.
The job titles of the score or so employees and their hours
and days of work are listed on the Employer’s December 2005
job bid sheet for 2006 positions.5 The Shop employee com-
plement comprises: The day-shifts leadman: Robert Burk, the
swing shift leadman: Matt Heading, parts/mechanic: William
Melzer, nine mechanic/fueler employees, one mechanic/floater
employee, six fuel/tire/trailer employees, and an equipment
washer/general helper employee. Two of the noted mechanic
employees also work as part-time leads. While the manager,
day and swing shift leads, the parts/mechanic, and a few others
work Monday through Friday, the bulk of the employees work
Tuesday through Saturday. The day shift is more heavily
staffed with the swing shift having a few employees and the
graveyard shift even fewer.
All of the described Shop employees under Hamilton receive
wage rates set in a common matrix and receive the same non-
management fringe benefits. Wage rates are paid based on a
system in which individuals are rated as class A, B, or C, A
being the highest classification, and within each class as a 1, 2,
or 3 grade employee with 3 being the highest rating. Thus, the
highest skilled employee able to do all mechanic tasks neces-
sary is rated A3, lesser-skilled employees might be rated as A1
and new lesser skilled employees at B1, etc. All employees

4 The Petitioner called six unit employees to testify respecting the
challenged ballots. The Employer called Shop Manager Hamilton.
None of the challenged voters testified.
5 The Employer utilized a list of job titles for Shop employee bid-
ding purposes in December 2005 in evidence as E. Exh. 5, it provides
the most objective prepetition evidence of the Employer’s titles of the
positions at issue.
punch a timeclock; all receive the same rate of premium pay for
overtime. Lead duties are uniformly compensated by an addi-
tional payment of $5 per day. The day and swing shift leads are
scheduled for half hour per day more than the other Shop floor
employees.
2. William Melzer
William Melzer’s title is parts/mechanic. He was selected for
this position which was not subject to employee bid as were all
other Shop nonlead positions. His duties focus on the ordering,
receipt, storage, and provision of parts for the use of Shop em-
ployees when working on the Employer’s equipment. An ex-
perienced mechanic, Melzer consults with mechanics on tech-
nical issues respecting parts and their availability, diagnoses
parts problems, repairs certain parts, and obtains and delivers
parts. There is no dispute that he is primarily involved in advis-
ing other mechanics regarding, acquiring, maintaining, repair-
ing, and recording and tracking the parts used in the Shop’s
operations. He has a table or bench mounted computer in the
parts area of the Shop—an area defined by a perimeter of bins
and shelves holding inventory of necessary repair and mainte-
nance parts. He is authorized and, on a regular basis, enters
inventory and part use information into the Employer’s proprie-
tary software system that other employees other than the Shop
manager are not authorized to do. He also delivers parts to
mechanics and may pick up or exchange parts or repaired
equipment locally. He works the day shift Monday through
Friday.
The great majority of Melzer’s time is involved in the re-
cordkeeping associated with the process. Thus, parts must be
ordered from venders, received and recorded within the Em-
ployer’s computer record system, and, when used, assigned to
the appropriate repair order. In conjunction with this process,
warranty issues, exchange procedures, and a myriad of other
procedural steps arise.
While there was some evidence that Melzer also does a bit of
mechanic work on equipment as assigned and acts or at least
has acted as a fueler, it is clear that he is essentially engaged
full time in the parts aspect of the Shop operation. Hamilton
testified that changes in the Employer’s handling of the acquisi-
tion and parts recordkeeping process has become significantly
more complicated in recent years and the parts/mechanic posi-
tion has evolved over that transition.
3. Leadmen Robert Burk and Mathew Heading
The employees called by the Petitioner generally referred to
the title of the individuals under Hamilton who directed them as
their foremen or supervisors. The terms were not simply a
recent construct generated to support the challenges. Employee
Frank Escobar referred to the position as “foreman” in a written
communication to management in August 2004. The Em-
ployer’s records make clear, however, that the correct title of
the positions at issue are lead or leadman. As noted, leads re-
ceive the same fringe benefits as other Shop employees save for
the $5 per day lead rate, are otherwise classified according to
and paid from the skills A, B, and C/ 1, 2, and 3 matrix earlier
described and wear the same coveralls as other employees.
USF REDDAWAY 333
Hamilton testified at some length to the nature of the opera-
tions of the Shop and his role as manager and the role of the
leads and other employees in the Shop’s day-to-day operations.
The Shop is responsible for regular maintenance and tracks and
arranges for the arrival at the Shop of, almost 300 of the Em-
ployer’s truck tractors. It fuels and inspects all equipment ar-
riving at the terminal—a significant number or trucks and trail-
ers, some loaded some empty. It deals with unscheduled repair
of equipment that has been in an accident, simply experienced a
mechanical failure, or failed inspection. It provides its skilled
mechanics to the terminal management on request to repair
other equipment that may have been damaged or failed.
The tasks described above, again as described by Hamilton,
involve the tracking and scheduling of equipment needing
scheduled maintenance but also has a large component of un-
scheduled, in essence surprise, or emergency, work as various
repairs are necessary on arriving equipment. Further, particular
tasks which may initially be anticipated to require a short pe-
riod of time can, upon further investigation of the problems
involved, become major time-consuming repairs. In undertak-
ing these tasks there are a variety of time priorities, i.e., the
repair of certain equipment such as loaded trailers, takes prece-
dence. The Employer maintains a detailed database tracking
many aspects of the repair and maintenance process, which
must be kept up to date with entries for work done and parts
used. So, too, given equipment has expenditure restrictions
and/or warranty issues which requires careful monitoring.
The scheduling and coordination of this dynamic mix falls
largely to Hamilton who has no secretary or titled assistant
manager. He also has other regular coordination and commu-
nication responsibilities with both the terminal-based and
higher-employer management. He described his workweek as a
time of seemingly frenetic effort to accomplish the needed tasks
while meeting and coordinating with Lead Burk who assists
him on Mondays—the 1 day of the Monday to Friday work-
week on the day shift that is relatively quieter and has less
staffing—to plan out the work of the week ahead. Each day
thereafter the two adjust the work plan as circumstances dictate.
As Hamilton testified respecting this effort with Burk:
Q. How often do you meet with Burk on a typical day
to talk about what you want done out in the Shop?
A. A typical day, we have a real briefing between 7:00
and 7:30 in the morning; that's when we sit down and plan.
I have a plan and he does—he helps me with it. I adminis-
trate it, he carries it through, okay? During the day I will
meet with Burk. It would not be unusual for me to say
nine to twelve times a day.
Hamilton testified that he is regularly so busy that Burk will
answer the phone and turn away vender representatives and
others who seek an unscheduled meeting with Hamilton. While
busy, he testified he regularly visits the Shop floor and is in
very frequent communication with his leads concerning all
matters of work and personnel.
Hamilton testified that the day and swing shift leads, Burk
and Heading, are actively involved in “working the plan” he
had “administered” by assigning work to Shop employees on an
ongoing basis and monitoring the progress of work, job safety,
and other job conditions and circumstances. He testified that
Leads Burk and Heading exercise substantial skill, energy, and
authority in fulfilling his plan. Nonetheless, Hamilton in a
series of paired questions from the Employer’s counsel denied
that any lead had the authority to, or ever had, in fact exercised
any of the panoply of powers enumerated in the definition of
supervisor set forth in Section 2(11) of the Act.6 And Hamilton
further denied that any lead had ever made a recommendation
to him respecting such matters which recommendation he ac-
cepted without an independent investigation of the situation.
Hamilton testified to two areas where Burk and Heading
were of direct assistance in personnel matters in 2005. First,
Hamilton utilized the two leads in the hire of a new truck
washer employee. After the applicants for the single job had
been narrowed down to three, Hamilton assigned each lead to
consider the three applications with the task of recommending
one of the applicants to him for hire. As Hamilton testified, he
asked the two leads to look at the applications and “give me
their feedback on who they felt was the best applicants to
call in.” Each lead studied the three applications in Hamilton’s
office in an open manner that was observed by many of the
Shop employees who recognized the applications under study
as those submitted by job seekers.
Hamilton then met with the two leads respecting the three
job applicants. In Hamilton’s words “they could not agree” on
a specific individual to hire. Hamilton testified:
I was still undecided. At that point, I called those three appli-
cants back in for another interview that the lead people were
involved in, and I let them ask questions. At that point, we
were still not in agreement. I was not in agreement with
them.
Hamilton then submitted all three applicant’s names to the Em-
ployer’s human resources department for reference checking
and vetting, pursuant to the Employer’s normal protocols. In a
few weeks, Hamilton was informed by the Employer’s human
resources department that all three applicants were acceptable
and he should choose one. Hamilton again consulted with Burk
and Heading. He and Heading agreed that one individual
should be hired. Presumably Burk preferred another applicant.
In consequence, Hamilton testified, he hired the individual
recommended by Heading whose recommendation he agreed
with.
The employees were aware of the leads role in the hiring
process. And at least some knew not just of the inspection
of applications but of the effective recommendation of the
leads. Thus, Justin McClenny testified that Heading told him
of his and Burk’s role:
Q. [H]as Heading ever made any representation to you
regarding his role in the hiring process?

6 Sec. 2(11): The term “supervisor” means any individual having au-
thority, in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the forego-
ing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD334
A. Yes, he told me that him and Bob Burk and Jim
Hamilton all went through applications, reviewed them,
picked the one they liked and at the end they voted. The
majority of the three won.
Hamilton further testified that he changed the Shop’s annual
evaluation procedures7 for the December 2005 cycle. He de-
scribed the new procedure:
This year I wanted to give the employees an opportunity to
evaluate [themselves]. I also give, according to what our
company rules and regulations are, my lead men an opportu-
nity to evaluate the employees that are on their shift. I do that.
The employee is supposed to and in most cases, do, fill out
the evaluation. They return it to me; some signed, some not
signed. The lead people fill out the evaluation on that em-
ployee.
Q. On a separate piece of paper?
A. On a separate piece of paper. These are done to-
tally separate. There’s three copies. I take one and I fill it
out. Now, I receive all three of them down here and yes, I
do have the lead men initial the bottom of those pages.
That way I know who did the evaluation. I take all three
and I look at them and if there’s a problem with those, if I
don’t feel the lead man has given the employee a good
enough evaluation or theres a problem, I want to know
why. At that point, I bring the lead man and the employee
into my office and ask him why. I make the final decision.
That’s how the plan works.
Q. You say you make the final decision as to what?
A. What the rating of the employee is.
Q. Okay.
A. And I do let every employee know that they have a
right to object to any rating that they gave and guess what,
99 percent of them underrate [themselves].
The process involved only the two leads, Burk and Heading,
who were involved in all evaluations of Shop employees under
their direction. Burk and Heading received annual evaluations
from Hamilton but no third individual was involved in that
process for them. Various Shop employees testified to being
shown their evaluation by their lead. Most testified that their
evaluations were signed by their respective leads. While the
record makes clear that the leads signed their own evaluation of
each employee under their direction, they did not sign the final
copy which was signed by Hamilton.
The 2005 employee evaluation and review (mechanic) forms
comprise two pages of employee data and provides space for
the entry of numeric 1–9 ratings respecting various perform-
ance areas including, for example, three rating areas under “At-
titude”: “Able to get along with fellow employees,” “Able to
get along with supervisor,” and “General Attitude toward job.”
Under “Production” there were additional rating areas includ-
ing: “Able to work up to job volume standards,” “Able to work

7 Performance and wage reviews under the Employer’s Oregon em-
ployee handbook are annual. The manual notes: “Whether or not an
adjustment in your rate of pay is warranted will be determined by and
will be commensurate with the appraisal of your individual job per-
formance, skills, and dependability.”
without supervision,” “Arrives for work on time,” and “Regu-
larly completes shift.” There are spaces provided for narrative
answers to questions such as: What does employee need for
advancement?; What does employee need for overall job im-
provement? Performance improvement since last review or
date of hire?; Recommendation and action taken. There is a
space for an overall rating. A signature line is provided for the
employee as well as a date line. There is also a “reviewed by”
line and a second line for the reviewer’s “title.” There are no
other signature lines on the form.
The final evaluations were at least in some cases delivered to
the employee by the lead and the scores discussed between the
two individuals. Thus, Aaron Goettsch testified:
I had talked to Heading about it. I had asked him about some
of the scores being, arrives to work on time, I only had a 5. I
asked him why I only received a 5, and he told me that’s what
he gave me. He doesn’t start until 3:00. So he doesn't know
what time I get here. So he just [gave] me an average is what
he told me.
There was testimony introduced by the Petitioner respecting
statements made by management and the leads concerning the
supervisory authority of leads Burk and Heading.
Justin McClenny testified that Burk has said in his presence
in the Shop: “I run the Shop.” He also testified that Hamilton
said the same respecting Burk:
Q. Has Hamilton made any representation in your
presence regarding Burk's authority in the Shop since the
time that Burk became lead man and before the NLRB
election?
A. Yes, he said this is Bob's Shop. I’m going to let
him run it.
Similarly, Frank Escobar testified to a dispute with Burk re-
specting a job assignment Burk had made. Escobar recalled
Burk told him: “And he says, I am the supervisor. This is
my Shop. He goes, you do as you’re told. If you have a
problem, go see Jim [Hamilton].”
Aaron Goettsch corroborated McClenny regarding Burk’s
personal statement that he “runs” the Shop. Indeed, he recalled
another occasion: “[Burk] was saying that Hamilton told
him that he was able to give us [disciplinary] letters. So I
was going to be the first one to get a letter by him.”
Goettsch also corroborated McClenny’s testimony respecting
Hamilton’s statement regarding Burk. Thus in the latter situa-
tion he recalled Hamilton told him of Burk: “it’s his Shop to
run it how he wants.” Escobar described a meeting with
Terminal Manager Bill Allman,8 Hamilton, and Heading
respecting a dispute between Heading and Escobar in very
late 2005. Escobar testified that Hamilton “told me that
Matt [Heading] is in charge, in front of Bill Allman, and
that Matt runs the Shop.” Employee David Jumbeck re-
called “several times” Hamilton told him that Burk “was
the day foreman and [Hamilton] backs him up a hundred
percent, right or wrong.”

8 The transcript has variant and phonetic spellings of Allman’s last
name.
USF REDDAWAY 335
Substantial testimony was received respecting the two lead’s
role in granting employees time off. Various employees testi-
fied that they had requested time off for various reasons from
leads Burk and Heading on many occasions and had regularly
had their requests immediately granted or denied on the spot.
No consultation between the leads and Hamilton occurred be-
tween the request and its being granted or denied. Employees
testified that on numerous occasions they had gone to Hamilton
with a time off request and Hamilton had not addressed it but
rather directed them back to their leads with admonitions from
Hamilton that if the time off request was okay with the lead, it
was acceptable to him.
Hamilton testified that leads are not authorized to grant
time off at the Shop and have never done so. He also testi-
fied:
Q. Have you on occasion told employees to check with
their lead men?
A. Yes, sir.
Q. And why did you do that, sir?
A. Well, if it's in the instance of vacation, the reason
for that as I indicated, you know, I plan the work, they
work the plan. Okay. I will go out and have him go
through the correct procedures. If the lead people are try-
ing to work the plan, they need to know who is not going
to be available. At that point, and I don't want blindsided.
I don't want them coming to work and somebody’s not
there and not knowing how to crew for the particular day.
At that point they come back in and they refer to me that
so and so asked for the day off, and I said, yeah. They
want the particular day off. And I’ve already looked at the
calendar. I know if it’s available or not, and if it is avail-
able, they’ll say I don't have a problem with it.
Q. And why do you have them check with the lead
man?
A. I don't want the leadman blindsided.
There is no question that Burk as the day shift lead had the
primary role in assisting Hamilton in completing his plan. He
also clearly spends the great bulk of his time executing the
“plan.” While Hamilton testified he regularly visits the Shop
floor and essentially constantly meets with Burk regarding the
work of the day as it evolves, he also testified that he is often
trapped in his office by other duties and is unable even to an-
swer the phone. Burk regularly observes the Shop staff at work
and assigns mechanics and others specific tasks to do, changing
and reassigning work assignments as needs and circumstances
require. While Hamilton testified he has a role in this, the Shop
employees, who testified, described job assignments by the
leads without consulting Hamilton as regular, frequent, and
typical.
Heading is lead on the swing shift. The swing shift is primar-
ily concerned with continuing the progress that has been
achieved by the day shift. Thus, Heading to a degree takes on
the tasks not completed on the day shift and at the end of his
shift passes the information concerning the tasks that still
needed to be completed to the graveyard. The swing shift staff-
ing is smaller than the day shift and the graveyard staffing is
smaller still. If Heading works with a smaller crew and is not
so heavily involved in the planning stages of the process, he
operates as the highest ranked employee in the Shop on that
shift and does not have the on site presence of Hamilton or
Burk which might allow him to consult others before taking
supervisory action.
The Employer maintains an elaborate and detailed record
keeping system which requires employees to enter the time they
work on given equipment in 6-minute intervals. Work assigned
to a particular piece of equipment is known as “direct” labor.
Worktime not dedicated to a specific piece of equipment is
“indirect” time. Each category in turn has sub-classifications to
more accurately describe the nature of the work. The unit em-
ployees testified consistently that they recorded essentially all
their time save breaks as “direct” time. Burk’s summary of
recorded time for calendar year 2005 puts his “direct” time as
fewer than 15 percent of his total time worked. Within the
larger indirect category, Burk’s largest category of time worked
was “supervision” at 38 percent. Heading’s summary of re-
corded time for the year 2005 records approximately 70 percent
of his working time as “direct.” Of his recorded “indirect”
time, which comprises about 30 percent of his total time, over
half, 17 + percent, is described by him as “supervision.”
Hamilton attempted to explain these entries. He suggests
that since the entries had been made by the leads and since
there has been no instruction to them respecting what to record
as supervisory indirect time, the entries subcategory were of
little significance. He suggested the entered motor oil quality
analysis, or other tasks not related to the supervision of Shop
employees. Melzer’s 2005 report records less than one third of
one percent of time spent in supervision. There was no evi-
dence that the annual summaries described above had ever been
commented on by reviewers prior to the representation pro-
ceeding.
B. Analysis and Conclusions
1. Credibility
Counsel for the Petitioner argued in support of the testimony
of unit employees who testified and counsel for the Employer
urged that the testimony of the Shop manager be found preemi-
nent. The instant record is unusual in that while the Shop man-
ager and many unit employees testified, neither the two leads—
Burk and Heading—nor Melzer, the parts/mechanic, testified.
Thus, views and opinions regarding the circumstances of the
challenged voters at relevant times were adduced by the oppos-
ing sides in a largely tangential manner. The great bulk of the
testimony was not challenged by opposing testimony. Little
regarding Melzer’s work history and circumstances was in
dispute.
Respecting the supervisory status of Leads Burk and Head-
ing, as set forth in part above, numerous unit employees attrib-
uted statements and actions to Burk, Heading, and Medford
Terminal Manager Allman that were not addressed by Burk,
Heading, or Allman—they did not testify. Similarly the testi-
mony of Shop Manager Hamilton respecting what he said and
did with the two leads stands alone since no one else in-
volved—Burk and Heading—testified.
The absence of the testimony of Burk and Heading, allowed
two seemingly inconsistent scenarios to exist unchallenged in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD336
the record by direct testimony. Thus, for example, Hamilton
testified that neither Burk nor Heading were ever told that the
Shop was theirs to run and further testified that the two never
made such statements either alone with him or in the presence
of others. Numerous employees, as set forth in part above,
testified to a series of such statements made by both leads to the
employees that the leads were in charge of the Shop and that
their orders must be obeyed by unit employees. The versions
of events come into direct conflict—even without the testimony
of Burk and Heading—respecting the contention of various unit
employees that such statements were made by Hamilton in their
presence or were made by Burk and Heading in Hamilton’s and
the employees’ presence. Hamilton’s categorical denial that
this ever occurred presents the clearest testimonial conflict in
the record.
The general picture of the supervisory role and relationship
of Hamilton, Burk, and Heading, is painted completely differ-
ent by Hamilton and the unit employees. Thus, Hamilton de-
scribed a Shop in which he, despite being remarkably busy with
a great multitude of tasks, was able to handle all supervisory
tasks and instruct and advise his leads Burk and Heading re-
specting essentially every aspect of their contacts with unit
employees. The employees described, from their perspective in
a corroborative way, a busy Shop Manager whose lead employ-
ees had taken on supervisory tasks that the Manager was too
busy to handle and, who had explicitly made it clear to employ-
ees that the leads were in charge and that this happened on
some occasions in the presence of Hamilton with his acquies-
cence and in some cases agreement.
The Petitioner’s evidentiary case on the leads is comprised of
the testimony of the various unit member witnesses. I observed
with care each unit employees demeanor while testifying. The
unit employees who testified were Shop unit members and not
professional witnesses. They testified with the hesitancy and
confusions of laymen testifying to events and experiences for
the first time in a courtroom and in what clearly seemed to
them to be an artificial and stilted form and manner. Such de-
meanor in a witness is a sign of honesty and guilelessness.
Individually and collectively, the witnesses simply did not ap-
pear to me to be prevaricators or on a mission to stretch the
truth concerning their experiences and observations at the Shop.
They seemed, rather, to be attempting as best they could to
understand the questions presented and to understand and con-
form to the artificial way the judge and the counsel wanted the
facts recited. And finally and most importantly, I was con-
vinced as to each of them that they were attempting to truth-
fully answer the questions put to them.
Counsel for the Respondent in skilled cross-examination
tested their recollections and revealed difficulties and animosi-
ties held by some of the unit employee witnesses against the
Employer or its agents. Counsel for the Respondent established
that essentially all the unit employee witnesses were wrong in
believing that their annual evaluations were signed by their
leads rather than Hamilton. Respondent argues these and other
inconsistencies require discrediting the unit employees’ testi-
mony where it differs from the testimony of Hamilton. The
Respondent’s arguments against the credibility of the unit em-
ployees’ testimony while lawyerly are simply not persuasive
given my contrary favorable impression of the witnesses. The
opposing arguments on this record are not of the significance
needed to undermine my strong belief after observing the unit
employees’ testimony that they were truthfully telling what
they recalled and that what they recalled was not significantly
distorted by the lens of hostility, bias or inattention. One factor
that gave me confidence in the veracity of the unit employees’
testimony was their lack of reluctance on numerous occasions
to freely admit they had not observed particular conduct the
Petitioner’s counselor was searching for in his questioning.
Thus, had the witness ever heard a given lead assert authority
over the witness, counsel might have asked. “No, he didn’t,”
was the unhesitating answer of various unit employees on nu-
merous occasions. Honesty and forthrightness in giving evi-
dence which is not supportive of one’s side is evidence of a
broader truthfulness in a witnesses’ testimony.
I further note that the various specific incidents testified to
by the unit employees together form a mutually corroborative
pattern of conduct by Hamilton, Burk, and Heading. The unit
employee witnesses, whose testimony is set forth in part above,
were sequestered during the hearing yet provided numerous
examples of similar conduct by Hamilton and the leads ob-
served at different times and in different circumstances.
If the testimony of the unit employees was comprised of nu-
merous independent events and circumstances which were mu-
tually reinforcing and corroborative, the testimony of Hamil-
ton—the sole witness for the Employer—in its critical elements
may be characterized as a broad-brushed denial of actions and
events. Thus, as set forth in part above, Hamilton testified to a
litany of things that never occurred and in some cases followed
up that testimony with equally broad statements that some
things always occurred. Thus, for example, he testified cate-
gorically that he did not authorize Burk and Heading to take
actions falling within the definition of supervisor set forth in
the Act. He testified he did not ever observe the leads ever tak-
ing such action. Hamilton testified that he personally, always
exercised supervisory powers himself and never heard recom-
mendations from his leads concerning such matters without
independently acting on his own, and then, only after an inde-
pendent investigation of the relevant circumstances.
Hamilton had a sound demeanor. I perceived no posture or
appearance suggesting intent to deceive. I did, however, find
his testimony favored the broad or sweeping generalization
over detail and nuance. There were two further aspects of his
testimony that undermined its plausibility in my view. First,
Hamilton painted a picture of a man doing the tasks of several
busy managers, so busy that his day-shift lead had to answer
the phone and shelter him from inquiries and other matters, yet
he could testify that without exception he undertook every su-
pervisory responsibility in the entire Shop of 20 employees
working 24 hours a day and 6 days a week. I found this testi-
mony implausible and far less likely than the picture painted by
the mutually corroborative testimony of the unit employees that
the leads were, at the very least, taking it upon themselves to
supervise the Shop operations in a significant way.
Further, and importantly, Hamilton’s broad generalizations
of personal retention of all supervisory authority and the com-
plete absence of such authority or action on the part of Burk
USF REDDAWAY 337
and Heading were impeached by his own testimony of specific
actions and procedures he instituted. Hamilton testified that he
did not solicit or accept the recommendations of his leads on
the hire of employees and that they had never made such rec-
ommendations. Yet, his own testimony reveals that he had the
leads study job applicants’ applications and make recommenda-
tions to him respecting the hire of the best applicant. Only after
he had the two leads interviewed the applicants anew with him
did Heading recommend the same applicant that Hamilton fa-
vored. Hamilton hired the applicant chosen by the two of them.
As Heading told an employee, in the uncontested testimony of
the employee as set forth above, the hire went by majority vote.
Again, Hamilton broadly denied any lead’s role in the
evaluation and reward of employees. Yet again, Hamilton testi-
fied to having Burk and Heading evaluate all the employees
under them on the same annual evaluation forms that Hamilton
signed and that were the basis for employee promotion and
reward for the year. Hamilton testified he used the leads’ em-
ployee evaluation forms to better inform his own final judg-
ment on each employee. The evaluations, as discussed in detail
above, involved important subjective judgments on the atti-
tudes, work skills and progress made by employees. The leads
helped Hamilton judge other employees, the process was not
used on the leads evaluations. The leads role in this process is
unequivocally supervisory.
All of the above, as well as my observation of the witnesses
and the record as a whole, instilled in me a greater confidence
in the testimony of the unit employees over Hamilton regarding
the larger picture of events. I apply the same analysis and reach
the same conclusion where the unit employees testified, as set
forth above, that statements of Burk’s and Heading’s authority
over Shop employees were made both by Hamilton and by
Burk and Heading in Hamilton’s presence and Hamilton de-
nied that such statements had ever been made by him or by
anyone in his presence. I credit the corroborative statements of
the employees set forth above over the denials of Hamilton. I
find the statements described by the unit employees occurred as
they credibly testified.
Supporting this determination is the fact that the unit em-
ployees testified to conversations with and statements made by
Burk and Heading alone with the employees outside Hamil-
ton’s presence which were not denied by the leads since the two
individuals did not testify at the hearing. I note as well that
Terminal Manager Allman also did not appear to address the
testimony that such statements were made in his presence.
2. The challenged ballot of Melzer
The Petitioner’s challenge to the ballot of Melzer is premised
on the argument that he is not a member of the stipulated bar-
gaining unit. The Board has very recently restated from Cae-
sar’s Tahoe, 337 NLRB 1096, 1097 (2002), the correct analyti-
cal approach to challenges respecting unit placement in stipu-
lated bargaining units in Halsted Communications, 347 NLRB
225, 225 (2006):
When resolving determinative challenged ballots in cases in-
volving stipulated bargaining units, the Board’s function is to
ascertain and enforce the parties’ intent, provided that it is not
contrary to any statutory provision or established Board pol-
icy. Caesar’s Tahoe, 337 NLRB 1096, 1097 (2002). To de-
termine whether an individual is included in the stipulated
bargaining unit, the Board applies a three-step test. First, the
Board must determine whether the stipulation is ambiguous.
If the stipulation clearly expresses the objective intent of the
parties in unambiguous terms, the Board simply enforces the
agreement. If the stipulation is ambiguous, the Board contin-
ues to step two and seeks to determine the parties’ intent
through usual methods of contract interpretation, including
the examination of extrinsic evidence. If the parties’ intent
still remains unclear, the Board will reach step three and em-
ploy its standard community-of-interest test to determine the
bargaining unit. Id.
To determine whether the stipulation is clear or am-
biguous, the Board will compare the express language of
the stipulated bargaining unit with the disputed classifica-
tion. Bell Convalescent Hospital, 337 NLRB 191 (2001)
(citing Viacom Cablevision, 268 NLRB 633 (1984)). The
Board will find a clear intent to include those classifica-
tions that match the express language, and will find a clear
intent to exclude those classifications not matching the
stipulated bargaining unit description. Bell Convalescent
Hospital, supra at 191. If the classification is not included,
and there is an exclusion for “all other employees,” the
stipulation will be read to clearly exclude that classifica-
tion. Id.; see also National Public Radio, Inc., 328 NLRB
75 (1999); Prudential Insurance Co., 246 NLRB 547
(1979). The Board bases this approach on the expectation
that the parties know the eligible employees’ job titles, and
intend their descriptions in the stipulation to apply to those
job titles. Bell Convalescent Hospital, supra at 191.
Following the Board’s instruction, the objective respecting
Melzer’s challenged ballot is to ascertain and enforce the par-
ties’ intent by applying the described three-step Halsted test.
First, does the stipulation clearly express the objective intent of
the parties in unambiguous terms? The stipulated unit is as
follows:
All mechanics, fuelers, truck washers, truck inspectors, trailer
mechanics and tire persons employed by the Employer at its
Central Point, Oregon facility; excluding all office clerical
employees, drivers, guards and supervisors as defined in the
Act and all other employees.
The job title of Melzer is “parts/mechanic.”
Melzer’s job title does not fall entirely within any of the
unit’s specifically included categories. The stipulated term
included in the unit is: “mechanic” which is but a part of the
two word title of Melzer: “parts/mechanic.” There is no broad
“work type” inclusion category in the stipulated unit descrip-
tion such as “all truck repair and maintenance employees.” The
stipulated unit does contain a broad exclusion from the unit of
“all other employees.”
I find that the job title: “parts/mechanic” is not clearly and
unambiguously included within the list of included categories
in the stipulated bargaining unit. That question is answered by
the simple matching of Melzer’s title to the unit categories.
There is no precise correspondence: mechanic is different from
parts/mechanic.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD338
The critical question remaining for determination is whether
or not Melzer’s job title “parts/mechanic” falls unambiguously
outside the unit inclusion language and therefore falls into the
stipulated units general category of “all other employees” spe-
cifically excluded from the unit. Thus, having found Melzer is
not clearly in the unit by virtue of his job title, is he clearly out
of the unit by that same job title? The parties disagree on the
issue and argued their positions with skill.
The Petitioner on brief at 34 argues:
The record shows that Melzer does not fall within any of the
categories of employees expressly described in the stipulated
unit. Under the familiar maxim, expressio unius est exclusio
alterius, the expression of one thing is the exclusion of an-
other, the mention of the categories within the stipulated unit
description implies the exclusion of categories not so men-
tioned.
The Board in Halsted Communications, supra at 1–2, re-
versed a hearing officer who found “contractor technician su-
pervisors” to be dual function employees not clearly excluded
from a stipulated unit which specifically included: “installation
technicians, including technician trainees” and specifically
excluded “all other employees” noting:
The disputed employees are contractor technician supervi-
sors. This classification is not included in the express lan-
guage of the unit description, and there is an exclusion for “all
other employees.” Thus, the parties’ intent to exclude the dis-
puted employees is clear. Further, the parties’ stipulation is
not contrary to any statutory provision or established Board
policy. We will therefore enforce the clear terms of the stipu-
lation.3 The hearing officer should not have reached the dual-
function issue. A dual-function analysis is a variant of the
community-of-interest test,4 and it is not applied where the
parties’ intent to exclude the classification is clear. Peirce-
Phelps, Inc., 341 NLRB 585, 585–586 (2004) (hearing officer
erred by addressing the merits of the dual-function issue
where the stipulation clearly excluded disputed employee);
Bell Convalescent Hospital, [337 NLRB 191 (2001)] (same).5
________________
3 Member Schaumber notes that in Columbia College, 346
NLRB [726] (2006), referenced in the concurrence, he dissented
as to the finding that the term “faculty” in the stipulated election
agreement in that case was ambiguous. In his view, that finding
was inconsistent with the principles stated in the precedent ap-
plied herein. See id. at [728] fn. 9.
4 Berea Publishing Co., 140 NLRB 516, 519 (1963).
5 In Harold J. Becker Co., 343 NLRB [51] (2004), cited by
the hearing officer, the Board applied a dual-function analysis to
determine whether the challenged employees were eligible to
vote. Although the employees at issue in that case fell within ex-
pressly excluded classifications, the stipulated bargaining unit in-
cluded “[a]ll employees of the Employer engaged in sheet metal
work,” and the disputed employees performed some amount of
sheet metal work. Id. at [51] fn. 3. Therefore, it was necessary
for the Board to apply the dual-function test to determine whether
the employees in question performed sufficient unit work to war-
rant inclusion in the unit. Harold J. Becker Co. is distinguishable
from the instant situation because the stipulated bargaining unit
here is defined only by job classifications and not by the type of
work performed.
In Peirce-Phelps, Inc., 341 NLRB 585, 585–586 (2004), the
Board expressly stated:
Where a stipulation includes certain job classifications and
expressly excludes “all other employees,” “[t]he Board . . .
will find a clear intent to exclude those classifications not
matching the stipulated bargaining unit description.” Bell
Convalescent Hospital, [337 NLRB 191 (2001) at 191].
The Employer emphasizes that Melzer is a mechanic and his
title reflects that fact. The Employer argues that it is wrong to
focus on the parts portion of Melzer’s job title (E. Br. at 25):
This narrow view of who is a mechanic, while helpful to the
Union’s position, ignores the reality of the Shop’s operations
and who the Employer classifies as mechanics.4
_______________
4 Even more significantly, as demonstrated earlier, if in fact
Melzer was titled a mechanic by the Company prior to the execu-
tion of the Stipulated Agreement of Election, which he undisput-
edly was, the existence of such title conclusively determines his
membership in the potential bargaining unit.
I have considered the arguments of the parties in light of the
record as a whole. I have devoted particular attention to the
Board’s teachings in the area with great attention to the recent
cases including those cited above which admonish and reverse
hearing officers who fail to find that the language of stipulated
agreements unambiguously exclude certain classifications and
erroneously turn to “dual function” tests to ascertain if the
given employees or job functions fall in the unit. While it is
my instinct to find that the classification “parts/mechanic” is
not clearly excluded from the stipulated bargaining unit and
then turn to the secondary tests provided under Halsted Com-
munications, supra, I read the recent Board cases as applying a
more rigorous approach to the unit exclusion issue.
Rather, I conclude the Board would find the fact that the
“parts/mechanic” job classification does not fall unambiguously
within the stipulated bargaining units inclusions: all mechanics,
fuelers, truck washers, truck inspectors, trailer mechanics, and
tire persons, that it therefore falls under the exclusion language
“all other employees.” This being so, the Board would hold the
parties to their stipulation and find the position
“parts/mechanic” and Meltzer, to be without the bargaining
unit. I reach this conclusion despite the burden the challenging
party bears to establish the disqualification of the challenged
voter.
Given the above, I find and conclude that the position of
“parts/mechanic” is not included in the parties stipulated bar-
gaining unit and, in consequence, Melzer was not in the unit at
relevant times. It further follows the challenge should be sus-
tained and Melzer’s ballot should not be opened and counted.
3. An alternate analysis should reviewing authority differ re-
garding my findings as to Melzer set forth in section 2 immedi-
ately above
Having found the parties stipulated bargaining unit excluded
the “parts/mechanic” Immediately above, the challenge to Mel-
zer’s ballot has been resolved. Were reviewing authority to
USF REDDAWAY 339
differ with that finding and rather find that the placement of the
“parts/mechanic” position within the stipulated unit was am-
biguous, further analysis under the Halstead analytic frame-
work discussed above would be necessary.
In order to avoid a remand in such a circumstances, I herein
below make alternate findings assuming for purpose of this
conditional analysis that the unit stipulation is ambiguous re-
specting the inclusion of the parts/mechanic position and Mel-
zer.
The second quoted Halsted test provides: “If the stipulation
is ambiguous, the Board continues to step two and seeks to
determine the parties’ intent through usual methods of contract
interpretation, including the examination of extrinsic evidence.”
The instant record does not provide any extrinsic evidence de-
terminative of the parties’ intent to include or exclude the
parts/mechanic position in or from the unit.9 The record simply
contains no extrinsic evidence of the parties’ intent respecting
Melzer or his job position at all. I find therefore that applying
the Board’s second test, the parties' intent still remains unclear.
It follows therefore to turn to the third and final quoted Hal-
sted test: The application of the Board’s normal community-of-
interest test to determine the inclusion or exclusion of the dis-
puted category from the bargaining unit under unit determining
community-of-interest principles. The factors for consideration
include distinctions and similarities in the skills and functions
of particular employee groups, their supervision, the em-
ployer’s organizational structure, differences, and similarities in
employees wages and hours, as well as the extent of integration
of operations, interchange, and contacts.
Here, the application of the Board’s representation unit case
law produces a clear and definitive result. Melzer as the
parts/mechanic employee has a mechanic background, exer-
cises some mechanical skills and consults with other mechanics
regarding mechanical problems involving parts. As noted
above, the employees receive identical nonwage compensation,
bid on vacation in common, and wear the same uniform. The
entire unit is engaged in the work of fueling, inspecting, main-
taining and repairing the Employer’s rolling stock. The
parts/mechanic position is a full participant in that process.
Further, the skills of the parts/mechanic on this record are
one with the overall community of interest of the unit centered
on fuelling, washing, inspecting, maintaining, and repairing the
Employer’s on the road equipment. Other factors, such as the
common prior experience, identical nonwage remuneration, and
the regular day-to-day contact of all the employees argues for a
common community of interest. Where such a community of
interest is established, a mechanic unit will include parts em-
ployees. See, e.g., Indianapolis Mack Sales & Service, 288

9 The Petitioner notes that the Union’s representation petition recites
that the unit contains 20 employees and, counting Melzer and the 2
leads in contest, there were 20 individuals in the unit. The Employer
argues these facts show the Petitioner had an intent to include the leads
and Melzer in the unit. I find first that the Union’s knowledge of the
actual numbers of employees and their job titles and positions at the
time it filed the petition has not been demonstrated and was likely
inexact. Second, it is not clear that the intentions of the Petitioner at the
time the petition was filed were the same as when the stipulated unit
was agreed on.
NLRB 1123 (1988). See also Caesar’s Tahoe, 337 NLRB 1096
(2002); Cook Composites & Polymers Co., 313 NLRB 1105,
1108 (1994).
Absent inclusion of the parts/mechanic in the unit, the posi-
tion would stand in isolation as the only nonsupervisory em-
ployee in the Shop not in the unit. The Board is always reluc-
tant to isolate a single employee from a larger unit essentially
denying that single employee the right to collective-bargaining
representation.
Given all the above, I find the position of parts/mechanic as
has been performed by Melzer at relevant times, would without
doubt have been included in the unit in controversy herein had
Board standards been applied to the facts present on the instant
record. That being so, the Board’s third Halsted test has been
met: the position is properly in the stipulated unit. It follows
that Melzer as the parts/mechanic employee was in the unit at
the relevant time. He was therefore eligible to vote and the
ballot he cast should be counted with other voting unit mem-
bers. The challenge to his ballot under this alternative analysis
should therefore be denied and I would recommend that course
to the Board.
4. The challenged ballots of Burk and Heading
The Petitioner challenged the ballots of Burk and Heading
contending each was at relevant times a supervisor. Statutory
supervisors are specifically excluded from the stipulated bar-
gaining unit and are not eligible to vote in Board representation
elections. If either individual was a statutory supervisor at
relevant times, he was not eligible to vote, the challenge to his
ballot would be sustained and his challenged ballot should not
be counted. The Employer contends neither employee was nor
is a supervisor.
The party challenging a voter asserting the voter is a supervi-
sor bears the burden of establishing that status. Kentucky River
Community Care, 532 U.S. 706 (2001). Possession of any one
of the indicia specified in Section 2(11) of the Act is sufficient
to confer supervisory status on an employee, provided that
authority is exercised with independent judgment on behalf of
management and not in a routine manner. E.g., Bowne of
Houston, 280 NLRB 1222, 1223 (1986). Issues of supervisory
status are fact intensive and careful examination of the relevant
facts and circumstances in each case is necessary. Since it is
the Petitioner who challenged each individual as a supervisor, I
apply the burden of proof on the issue to the Petitioner here.
With that fact in mind, I shall consider the challenges in light of
the record as a whole and the credibility resolutions noted,
above.
The initial argument of the Petitioner is that Leads Burk and
Heading use their independent judgment in responsibly direct-
ing the work of the Shop employees. As noted above, the re-
cord is clear given my credibility findings, and I find that each
lead regularly assigns and reassigns Shop staff to various tasks
as the constantly changing workload of the Shop requires
changes in the order the work of the Shop is addressed. I fur-
ther find that, having resolved the credibility element in this
area adversely to Hamilton, a great number of these decisions
are taken by the leads without consultation with or approval by
the Shop manager. In making the changes in job assignments,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD340
the leads use their knowledge of the technical requirements of
the various jobs, their knowledge and understanding of the
skills and speed of the individual Shop employees to best meet
the Employer’s production priorities. As Hamilton testified, he
may “administer” the plan for Shop operations, but the leads
“work” the plan and importantly I find that part of that process
involves the leads independently making regular work assign-
ments and reassignments to keep the plan on track under chang-
ing circumstances.
In Custom Bronze & Aluminum Corp., 197 NLRB 397
(1972), the Board considered an individual who scheduled and
assigned work to shop employees, gave them their orders and
instructions, helped them in performing their jobs and made
certain that the work was done properly. These duties were
found to rise to the level of responsible direction.
The leads role in the hiring of new Shop employees, as took
place in the hire of a new truck washer as described above, was
also advanced by the Petitioner as an indicia of the two leads’
supervisory responsibilities. The Board recently considered the
challenge of an individual as a supervisor who had a role in
considering applicants for hire. J. C. Penny Corp., 347 NLRB
127, 129 (2006). The Board noted:
The power to effectively recommend a hire, as used in Sec-
tion 2(11), contemplates more than the mere screening of ap-
plications or other ministerial participation in the interview
and hiring process. See [Bowne of Houston, 280 NLRB 1222
(1986)] at 1225 (assistant foreman who interviewed appli-
cants and advised management of the experience of at least
one of them did not make hiring decisions or effective rec-
ommendations to hire, as management also interviewed all
applicants and had final hiring authority); The Door, 297
NLRB 601, 601–602 (1990) (finding that an employee lacked
authority to effectively recommend hire where his role in the
hiring process was limited to screening resumes, making rec-
ommendations with respect to technical qualifications, and
participating, along with others, in applicant interviews).
It is clear from the Board’s analysis that the leads participa-
tion in the hiring process does not support a claim of supervi-
sory status unless the recommendations of the leads regarding
hiring were effective. It is clear and I find that while Shop
Manager Hamilton had the final say in selecting one of the
three final applicants for hire, he had asked for the leads rec-
ommendation on who he should hire and they had made such
recommendations. When in the initial meeting with the leads,
neither lead agreed with Hamilton’s choice of applicants, Ham-
ilton declined to hire any applicant. After subsequent inter-
views of the three applicants in which the leads participated
along with Hamilton, Hamilton solicited the leads’ recommen-
dations on which applicant to hire once again. When one lead,
Heading, agreed with Hamilton on a particular applicant to hire,
Hamilton then hired the recommended applicant. As Heading
explained the process to a Shop employee later, the hire was
decided by a “majority vote” taken among Hamilton, Burk, and
Heading.
Because of the disparity of initial recommendations of the
two leads, i.e., they did not agree with one another or with
Hamilton respecting which applicant to be hired, Hamilton put
off selecting any applicant for hire. Because of the subsequent
agreement of Heading with Hamilton’s choice of applicant to
hire, i.e., two of the three were now of a common mind on who
to hire, Hamilton hired the recommended applicant. Thus, the
initially disparate recommendations of the leads in my view
blocked hire of any applicant after the first “vote” and later the
agreement of the recommendations of Heading with Hamilton
caused the hire of the applicant who received the two of three
“votes” for hire. This series of circumstances convinces me
that recommendations of the leads were clearly effective, as the
word is used in Section 2(11) of the Act. No independent in-
vestigation of the Shop manager was involved in relying on a
lead hire recommendation. Thus, I find that the Shop manager
specifically authorized Leads Burk and Heading to participate
in the hiring process, solicited their recommendations respect-
ing the hire of one of the three final applicants, and was guided
by their recommendations in a manner demonstrating that the
two leads recommendations were effective.
The two leads participation in the 2005 employee annual
evaluation process is also advanced as evidence of their super-
visory status by the Petitioner. Clearly each lead evaluated and
rated employees whose work he directed and, by entering such
ratings on the evaluation forms being considered by Hamilton
predicate to making the final copy of the form, was making a
recommendation that such lead prepared ratings be adopted by
the Shop manager on the final copy. Employee remuneration
was at issue in the evaluation process. Thus, the process of
evaluation of great importance to employees. The issue again
is whether or not the leads recommendations in these regards
were “effective.” I find that they were. Thus, I have credited
the testimony of Aaron Goettsch who described the explanation
he received from his lead concerning a portion of his 2005 an-
nual evaluation:
I had talked to Heading about it. I had asked him about some
of the scores being, arrives to work on time, I only had a 5
[out of 9]. I asked him why I only received a 5, and he told
me that's what he gave me. He doesn't start until 3:00. So he
doesn't know what time I get here. So he just give me an av-
erage is what he told me.
Hamilton did not testify respecting Goettsch’s evaluation and,
as noted, Heading did not testify at all.
That credited exchange establishes in my view that the
evaluations by the leads were effective recommendations in
that they heavily influenced or even substituted for the Shop
managers opinions on the final evaluation form. The “5” rating
was not necessarily one which would have been awarded by
Hamilton if he had independently investigated Goettsch’s time
of attendance. Goettsch’s marks were generally better in other
areas of the evaluation. And, of course, since Heading’s hours
were different from Hamilton’s, independent investigation of
the staff on that “other” shift would have been difficult for
Hamilton to do on any regular basis.
The Petitioner advances the substantial testimony that the
two leads were held out to unit employees by the terminal man-
ager, the Shop manager and by the statements of the leads
themselves, through statements of the leads or statements made
by or in the presence of management, as supervisory. The em-
USF REDDAWAY 341
ployees heard the leads were “in charge,” “ran the Shop,” and
the leads made various statements to employees that a failure to
abide by their instructions would result in discipline or that as
leads they had the power to discipline.
Based on the credited testimony set forth above, I find that
both the terminal manager and the Shop manager, as well as the
Leads Burk and Heading, in the presence of employees in many
settings and circumstances as set forth in part above, made it
clear to employees that the leads were in charge of the Shop
and that unit employees should regard them as their supervi-
sors.
I further find that the employees did in fact regard the leads
as possessing supervisory powers. This was not only true based
on the evidence recited immediately above, but also because
the employees, as per the credited testimony noted, had often
gone to their leads with requests for time off and had those
requests immediately ruled on by the lead involved without any
lead consultation with the Shop manager. And the employees
credibly testified that they had gone to the Shop manager with
requests for time off and been referred by him back to the re-
spective leads for a ruling of the employee request. Hamilton’s
denials of such lead supervisory activities and his own action in
these regards have been discredited, above.
I finally find that the leads also regarded themselves as the
supervisors of the unit employees under them. This is evident
from the statements the leads made as noted and the statements
of Hamilton as noted. Further, these two leads recorded on the
Employer’s official documents that a substantial part of their
time was spent in supervision. Further, I find that each lead, as
set forth in greater detail above, threatened to discipline unit
employees under his direction if the employees did not follow
his direction.
All of the above, in its totality, makes it crystal clear that
Burk and Heading at all times material were statutory supervi-
sors within the meaning of Section 2(11) of the Act. I so find.
It follows that they were supervisory at the time of the balloting
and not properly eligible to cast ballots. Thus, I further find
that the challenge to their ballots should be sustained and their
ballots not be opened, counted, or otherwise considered. I shall
so recommend to the Board.
5. Summary, conclusions, and recommendations
The Regional Director in his Report on Objections directed
that I make recommendations to the Board as to the disposition
of the Petitioner’s and the Employer’s objections and the three
challenged ballots of the Petitioner respecting Melzer, Burk,
and Heading.
I have granted the joint motion of the Petitioner and the Em-
ployer to withdraw their respective objections in their entirety.
No objections remain pending for consideration and resolution
by the Board, therefore no recommendations in that regard shall
be made to the Board.
Based on the record as a whole, I have found and conclude
that the Petitioner’s challenges to the ballots of. Burk, Heading,
and Melzer are, and each of them is, meritorious and should be
sustained. I therefore make the following recommendations to
the Board.
RECOMMENDATIONS TO THE BOARD10
I recommend the Board sustain the Petitioner’s challenges to
the ballots of Burk, Heading, and Melzer.
I recommend the Board direct the Regional Director for Re-
gion 19 to prepare and serve on the parties a revised tally of
ballots reflecting the amended result that the challenges are no
longer determinative of the results of the election and issue the
appropriate certification of the Union as the exclusive represen-
tative of the employees in the bargaining unit.

10 The Board’s Rules and Regulations Sec. 102.69(e) provides in part
concerning a hearing officer’s report resolving questions of credibility
and containing findings of fact and recommendations as to the disposi-
tion of election objections and challenges:
[A]ny party may within 14 days from the date of issuance of the re-
port on challenged ballots or on objections, or on both, file with the
Board in Washington, D.C., exceptions to such report, with supporting
brief if desired. Within 7 days from the last date on which exceptions
and any supporting brief may be filed, or such further period as the
Board may allow, a party opposing the exceptions may file an answer-
ing brief with the Board in Washington, D.C. If no exceptions are filed
to such report, the Board, upon the expiration of the period for filing
such exceptions, may decide the matter forthwith upon the record or
may make other disposition of the case.