Viacom Cablevision

National Labor Relations Board - Board Decisions

Jan 25, 1984

268 N.L.R.B. 633 (N.L.R.B. 1984)

VIACOM CABLEVISION
Television Signal Corporation, d/b/a Viacom Cable-
vision of San Francisco and Communications
Workers of America, AFL-CIO, Petitioner.
Case 20-RC-15580
25 January 1984
DECISION AND DIRECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The National Labor Relations Board, by a three-
member panel, has considered the determinative
challenge in an election held 21 January 1983 and
the Hearing Officer's report recommending disposi-
tion of it. The election was conducted pursuant to
a Stipulated Election Agreement.' The tally of bal-
lots shows seven for and six against the Petitioner,
with one challenged ballot.
The Board has reviewed the record and Hearing
Officer's report in light of the exceptions and brief,
and hereby adopts the Hearing Officer's findings
only to the extent consistent herewith.
The issue in this case is whether or not employee
Anthony Hatch, the challenged voter, should be in-
cluded in a unit of sales representatives at Viacom's
San Francisco facility. At the outset, we must con-
sider the language of the stipulation excluding "em-
ployees covered by an existing collective-bargain-
ing agreement . . . ." The parties further stipulated
that the period for eligibility should be the payroll
period ending 21 December 1982. The record indi-
cates that Hatch was a member of the International
Brotherhood of Teamsters, Local 856, until De-
cember 1982.2 On 6 December 1982, Hatch trans-
ferred from his position at Viacom as a commercial
marketing representative s to become a commercial
sales representative. In this new position, Hatch ac-
quired the added responsibility for actively solicit-
ing multiple dwelling agreements permitting
Viacom to wire commercial dwellings for cable tel-
evision service. According to uncontroverted hear-
ing testimony, in December 1982 Hatch submitted
a withdrawal card to Local 856. In a conversation
with a Viacom manager, the business representa-
tive for Local 856 gave assurances that the with-
t The parties stipulated that the appropriate unit should be: "All sales
representatives employed by the Employer at its San Francisco, Califor-
nia facility; excluding all other employees, employees covered by existing
collective-bargaining agreements, office clerical employees, guards and
supervisors as defined by the Act."
The recognition clause for the relevant Teamsters collective-bargain-
ing agreement covered "office clerical and engineering personnel at the
Employer's San Francisco location, excluding confidential and exempt
employees, salespeople, employees covered by other contracts, guards
and supervisors."
I As a commercial marketing representative, Hatch received customer
inquiries, scheduled engineer survey appointments, mailed multiple dwell-
ing agreements to customers for approval, and scheduled crews for
wiring commercial dwellings to receive Viacom's cable services.
268 NLRB No. 96
drawal card would be approved and issued. Fur-
thermore, Local 856 did not object to Viacom's de-
letion of Hatch from the Union's health and wel-
fare trust fund payment list. Based on the changed
nature of Hatch's job, and on the evidence that
Hatch withdrew from Local 856 prior to the
period for eligibility, we find that Hatch was not
covered by the existing collective-bargaining agree-
ment as of 21 December 1982. Accordingly, he is
not excluded from the unit of sales representatives
on that ground.
The Employer's primary exception in this case is
to the Hearing Officer's failure to conclude that
Hatch is a sales representative within the meaning
of the stipulated election agreement despite his
finding that Hatch was classified as a commercial
sales representative during the eligibility period.
We agree with the Employer's contention and hold
that the Hearing Officer erred in applying the com-
munity of interest doctrine to the facts of this case.
It is well-settled law in stipulated unit election
cases that "the Board's function is to ascertain the
parties' intent with regard to the disputed employ-
ee and then to determine whether such intent is in-
consistent with any statutory provision or estab-
lished Board policy."4 The Board examines the
intent on an objective basis, and denies recognition
to any subjective intent at odds with the stipula-
tion. s When the objective intent is clear, the Board
will hold the parties to their agreement. 6 If, how-
ever, the objective intent is ambiguous, the Board
resorts to the community of interest doctrine to aid
its resolution of the challenged voter's unit inclu-
sion. 7 In order to determine whether a stipulation's
intent is ambiguous or clear, the Board will com-
pare the express descriptive language of the stipula-
tion with the bona fide s titles or job descriptions of
the affected employee. If the employee's title fits
the descriptive language, the Board will find a
clear expression of intent and include the employee
in the unit. If the employee's title does not fit the
descriptive language, it will also find a clear ex-
pression of intent and exclude the employee from
the unit. The Board bases this approach on the ex-
pectation that the parties are knowledgeable as to
the employees' job titles, and intend their descrip-
tions in the stipulation to apply to those job titles.
Finally, if the affected employees lack job titles or
descriptions, the Board will find an ambiguous ex-
4 Tribune Co., 190 NLRB 398, 399 (1971).
s White Cloud Products, 214 NLRB 516, 517 (1974).
s Prudential Insurance Co., 246 NLRB 547, 548 (1979).
7 See, e.g., Detective Intelligence Service, 177 NLRB 69 (1969), enfd. 448
F.2d 1022 (9th Cir. 1971).
^ We will only consider bona fide titles or job descriptions that fairly
represent the employee's function and have been applied for a reasonable
period of time.
633
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pression of intent and directly apply the communi-
ty of interest doctrine to the facts of the case.
The express descriptive language of the stipula-
tion in this case included all sales representatives in
the unit. We find, in agreement with the Hearing
Officer, that as of 6 December 1982, Hatch's job
description was changed to "Commercial Sales
Representative." In light of the evidence that
Viacom employed commercial sales representatives
at five other locations in the United States, that
Viacom considered creating a commercial sales
representative position in San Francisco well in ad-
vance of the election campaign, and that the job
title fairly represents Hatch's function, we find that
the job title is bona fide as applied to Hatch. In this
case, Hatch's job title fits the descriptive language
of the stipulation. The stipulation includes all sales
representatives, and Hatch was a commercial sales
representative. Accordingly, we find a clear ex-
pression of intent, conclude that Hatch is a sales
representative within the meaning of the stipulated
election agreement, and include Hatch in the unit.
The challenge to his ballot is hereby overruled.
DIRECTION
It is directed that this case be remanded to the
Regional Director for Region 20. Within 10 days
from the date of this Decision and Direction, the
Regional Director shall open and count the ballot
of Anthony Hatch and shall thereafter prepare and
serve on the parties a revised tally of ballots, upon
which basis he shall issue the appropriate certifica-
tion.
634