A.S.V., INC. A/K/A TEREX

National Labor Relations Board - Board Decisions

Jun 30, 2014

360 N.L.R.B. 1252 (N.L.R.B. 2014)

1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 138
A.S.V., Inc., a/k/a Terex and International Brother-
hood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, and Helpers, AFL–CIO,
Petitioner. Case 18–RC–128308
June 30, 2014
ORDER DENYING REVIEW
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND SCHIFFER
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Employer’s Request for Review of the Regional
Director’s Decision and Direction of Election, dated May
29, 2014, is denied as it raises no substantial issues war-
ranting review.1
DECISION AND DIRECTION OF ELECTION
The Petitioner seeks to represent a unit of all full-time
and regular part-time employees employed by the Em-
ployer in its undercarriage “department,” including ser-
vice parts employees.2 Contrary to the Petitioner, the
Employer argues that Petitioner seeks a group of em-
ployees who are part of a larger group of employees, and
therefore that the unit sought by Petitioner is a fractured
unit and not appropriate for collective bargaining. Ra-
ther, according to the Employer, there are three alterna-

1 Pertinent portions of the Regional Director’s Decision and Direc-
tion of Election are attached.
No party requests review of the Regional Director’s analysis and
finding that the petitioned-for unit of undercarriage assembly employ-
ees is inappropriate. In addition, we find that Specialty Healthcare &
Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. sub nom.
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir.
2013), applies to this proceeding and that the Regional Director proper-
ly determined the smallest appropriate unit encompassing the peti-
tioned-for employee classifications in accordance with that case and
our established precedent. See, e.g., Overnite Transportation Co., 331
NLRB 662, 663 (2000).
Member Miscimarra would grant review because the Regional Di-
rector found that the petitioned-for unit of “undercarriage” assembly
employees would have been an inappropriate “fractured” unit and no
party currently argues such a unit would be appropriate. Given that a
“petitioned-for unit” is not at issue, the standard articulated in Specialty
Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011),
enfd. sub nom. Kindred Nursing Centers East v. NLRB, 727 F.3d 552
(6th Cir. 2013), which Member Miscimarra finds unnecessary to rely
upon in this case, is not applicable and, therefore, it would not favor the
alternative unit of assembly employees (deemed appropriate by the
Regional Director) as compared to a broader production and mainte-
nance unit. In these circumstances, Member Miscimarra believes the
Regional Director and the Employer have identified sufficient facts
regarding functional integration and other interests shared by various
assembly and non-assembly production and maintenance employees to
warrant granting review.
2 I use the term “department” for the sake of clarity and brevity. At
the hearing, the Employer argued that there is no undercarriage “de-
partment;” rather that the undercarriage employees are part of a larger
group of employees employed in the assembly area.
tive units of employees which might be appropriate for
collective bargaining.
I conclude that the unit sought by the Petitioner is in-
deed a fractured group of employees and not a unit ap-
propriate for collective bargaining. However, because
the Petitioner was unable to state at the hearing whether
it would proceed to an election in an alternative unit,
rather than dismiss this petition, the Petitioner will be
given the opportunity to participate in an election in a
broader unit.
Under Section 3(b) of the Act, I have the authority to
hear and decide this matter on behalf of the National La-
bor Relations Board. Upon the entire record in this pro-
ceeding, I find:
1. The hearing officer’s rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
2. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes of
the Act to assert jurisdiction here.3
3. The labor organization involved claims to represent
certain employees of the Employer.
4. A question affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
5. This decision begins with an overview of the Em-
ployer’s operations, including supervisory hierarchy.
The second section sets forth the evidence regarding the
undercarriage employees sought by Petitioner, as well as
their relationship with other employees employed by the
Employer. The third section applies the facts to Board
law, and specifically to Specialty Healthcare, 357 NLRB
934 (2011), and explains my conclusion that the unit
sought by the Petitioner is inappropriate. Finally, I ex-
plain the basis for my conclusion that an appropriate unit
for collective bargaining includes all assembly employ-
ees employed by the Employer.
The Employer’s Operation and Supervisory Structure
The Employer manufactures compact track loaders
(CTLs) and skid steer loaders (SSLs) for the construction
industry at its Grand Rapids, Minnesota facility. The
Employer’s general manager is Jim DiBiagio. In its
posthearing brief the Employer contends that DiBiagio is
the highest ranking employer manager at the facility,
although the record does not reflect this fact. The Em-
ployer’s senior human resources manager (and only hu-
man resources employee at the facility) is Deborah

3 The Employer is a Minnesota corporation engaged in the manufac-
ture of construction equipment at its facility located in Grand Rapids,
Minnesota. The Employer annually derives gross revenues in excess of
$500,000 and purchases goods and supplies valued in excess of
$50,000 directly from suppliers located outside the State of Minnesota.
A.S.V., INC. 1253
Schultz. Schultz reports to DiBiagio. Also reporting to
DiBiagio are managers for the following areas: assem-
bly, weld/fabrication/paint, production control, engineer-
ing, purchasing and (separately) quality control (current-
ly vacant).
The employees Petitioner seeks to represent are in the
assembly area. The manager of assembly is Dallas Grav-
elle, and he manages 59 employees. Of those 59 em-
ployees, Petitioner seeks to represent about 15 employees
who are employed in undercarriage or service parts,
which is considered part of undercarriage. There is no
evidence that there are 2(11) supervisors reporting to
Gravelle. Rather, there are a total of four team leads who
oversee the assembly employees. The four team leads
assign work, move employees around to fill in, assist
employees, align work, ensure that parts are available as
needed for the assembly lines, and liaise with engineers
when their assistance is needed. The record contains al-
most no detail regarding the performance of these vari-
ous tasks; however, both the Employer and Petitioner
agree that team leads should be included in any unit
found appropriate for collective bargaining.4
Petitioner attaches significance to two facts which I
view as irrelevant to the decision in this case. These facts
are that at one time the undercarriage operation was lo-
cated in a different city about seven miles from the
Grand Rapids facility, and at one time the Employer had
a supervisor in charge of this area even after it was relo-
cated to Grand Rapids (rather than a team lead). Neither
of these facts is relevant because there has not been sepa-
rate supervision (other than the team lead) of the under-
carriage employees for at least 1 year, and it has been
even longer since the undercarriage operation was in a
separate facility.
All employees, whether in the unit sought by Petitioner
or in assembly, or in other areas of the facility, have the
same employee handbook, working conditions, benefits,
and work rules. Employees can punch any of the time
clocks located near entrances; they can use any of the
break rooms (none is designated for a particular group of
employees); and they use the same parking lot. It ap-
pears that lockers are made available for employees’ use
in various parts of the plant, and employees tend to use
the lockers closest to their work area. Thus, for example,
the undercarriage employees utilize lockers close to their
work area, and no other employees use lockers in that
area. Work hours are 6:30 am–5 p.m., Monday through
Thursday for all assembly employees (including under-
carriage employees), as well as fabrication, weld, paint

4 The parties also agreed that temporary employees should be ex-
cluded from the unit.
and warehouse employees. However, the record reflects
that undercarriage employees have a unique time for
lunch break that differs from other employees.
The Employer provided wage rates for seven classifi-
cations of employees. Assemblers (which include under-
carriage employees) start at $13.50/hour and the top rate
is $17.13/hour. Water striders (who pick and deliver
parts to assembly areas) have the same wage range as the
assemblers. Painters, metal fabricators, and quality as-
surance inspectors start at $14.11/hour and the top rate is
$17.47/hour. Welders I and II start at $14.50/hour and
$15.50/hour and their top rates are $17.85 and $18.85
respectively. Finally, the warehouse clerk starts at
$14.50/hour and the top rate is $17.59/hour. In addition
to increases due to time in the job (which top out at 36
months), all employees receive annual wage increases
effective April 1 of each year.
Petitioner also filed a petition to represent the painters
employed by the Employer in Case 18–RC–128325. The
parties entered into an election agreement on the date of
the hearing in this case, agreeing to an election on June
18, 2014, in a unit of all full-time and regular part-time
painters and employee senior painters in the paint de-
partment. According to the Employer’s posthearing brief,
the Employer agreed to this unit because the Board “has
long recognized that painters constitute a skilled craft,”
because the painters work in booths with special protec-
tive clothing and do not typically interchange with other
employees, and for “other reasons.”
The Undercarriage Employees Sought by Petitioner and
Their Relationship to Other Employees
The undercarriage department builds track components
that “drive” some of the equipment manufactured by the
Employer. Service parts employees build parts used ex-
clusively for undercarriage manufacturing. Undercar-
riages are used by the Employer as part of the manufac-
ture of compact track loaders. In essence, the undercar-
riage employees build the “bottom” of the CTLs, and
then a cab goes on top of the undercarriage (the under-
carriage employees neither manufacture nor install the
cab on top—that is the role of employees in the cab sub-
assembly area). In addition, the undercarriage employees
build undercarriages for Caterpillar. They are shipped to
Caterpillar as undercarriages. In other words, once the
undercarriage employees complete their jobs, the product
is shipped out with no further work on them by any other
employees of the Employer. On the other hand, the other
product built by the Employer—skid steer loaders—does
not have an undercarriage.
The record contains great detail regarding the physical
layout of the plant. Most of the detail is irrelevant; how-
ever, it is important to note that the undercarriage em-
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees work in a large room with other assembly em-
ployees. There are no walls separating various parts of
assembly, although there is a wall separating the receiv-
ing area from the assembly area. Thus, the fabrication
area including welding booths, the wash bays and paint
booths and the various assembly areas (cab assembly,
skid steer assembly, track machine area, loader assembly
and engine assembly) are all in the big room. A witness
for the Employer estimated that the undercarriage assem-
bly area is within 30 feet of the loader assembly area.
Petitioner argues, however, that it is significant that the
undercarriage area is physically separate, delineated with
an overhead sign, and separated from other areas by
aisles used by forklifts and/or to store equipment and
parts.
The team leader for the undercarriage area is Nicholas
Baker. There is a specifically-assigned quality inspector
assigned to the undercarriage area. Water striders, who
pick parts from the warehouse and deliver them to as-
sembly areas (including apparently the undercarriage
area) report to a separate warehouse manager. Also
working in the warehouse are warehouse clerks, who
receive, inventory and store parts to be used in assembly.
Also employed are two maintenance employees who
report directly to General Manager DiBiagio. They
maintain the physical plant, as well as service equipment
to the extent they have the ability and skills to do so.
Employees in the assembly area perform various func-
tions. These functions include: fabrication of parts (using
computer numerical controlled (CNC) machines, saws
and plasma tables with plasma cutters, and press brakes
which bend metal); welding (there are three welding
booths); quality control (which occurs after welding to
ensure welds are complete and correctly done); two wash
bays and paint booths (to wash product before it is paint-
ed and then to paint the product); and finally a drying
and storage area. Next are various assembly areas in-
cluding cab assembly (which installs seats, headlights,
controls, foot wells and windows if there are windows in
cabs); skid steer assembly; track machine area; loader
assembly; engine assembly (which involves adding elec-
tronics to engines); and of course undercarriage assem-
bly. Each assembly area has tools unique to it, as well as
tools in common. Each assembly area conducts its own
on-the-job training, and while skills and education levels
required are the same for all areas, each area has its own
unique tools and equipment employees are required to
learn. For example, in the undercarriage area are special-
ized tables for constructing sprockets, specialized guns
with balancers, and unique air presses—all requiring
special training to learn how to use them. An employee
who testified estimated it would take about 1 month of
on-the-job training to master the equipment used in the
undercarriage area.
There is no evidence in the record that assemblers oth-
er than undercarriage employees work on the undercar-
riages. Thus, there is no evidence that fabricators, weld-
ers or painters are involved in the production of under-
carriages.
There is conclusionary evidence of interchange be-
tween the undercarriage area and other work areas. The
Employer contends that it moves employees from area to
area based on where the work is on any given day. For
example, if there is less demand for production of CTLs,
assembly employees in that area will be moved to where
work is. Work ebbs and increases in various areas based
on customer demand, the availability of parts, and times
of the year (for example the demand for undercarriages is
less at the end of each year). The Employer also con-
tends that when overtime is required it seeks volun-
teers—first from the area where overtime is needed, then
from other areas of the plant—and finally, if there are not
enough volunteers, it requires overtime. While the record
is not entirely consistent on this point, it appears that if
overtime is required, it is required of the employees in
the area where overtime is needed. Thus, for example, if
overtime is required in cab subassembly, first employees
in cab subassembly will be asked to volunteer, then other
assemblers will be asked to volunteer, and finally, if
there are insufficient volunteers, employees in cab subas-
sembly will be required to work overtime. However,
anyone who volunteers from another area has to be able
to operate the special machinery of the area where over-
time is needed.
Also in the record is the identity of employees tempo-
rarily transferred between departments. Most relevant are
a fabricator who has been working in the undercarriage
area since November 2013, a welder who has been work-
ing in undercarriage also since November 2013, (but who
moved to cab subassembly in April 2014), and a welder
who has a work-related injury and work restrictions and
has been working in undercarriage since early February
2014. In all of these cases, the employee moved to un-
dercarriage retained his job title and pay from his prior
position as these are considered temporary transfers. I
note however, that Petitioner argues these transfers are
more akin to permanent ones, although this argument
ignores unrebutted Employer evidence that the employ-
ees retain their pay rates and job classifications from
their prior positions.
The record contains six other examples of temporary
transfers from and to departments not involving the un-
dercarriage area. The record also contains evidence of
A.S.V., INC. 1255
five permanent transfers—none involving undercarriage
employees or the undercarriage department.
Employees in the undercarriage area meet with team
lead Baker twice each day—both at the beginning of the
workday and then after lunch break. At that time Baker
goes over minutes (not otherwise explained on the rec-
ord) and leads stretches. No other assembly employees
attend these meetings.
Board Law and its Application to the Facts
in This Case
Both parties agree that an analysis of the law applica-
ble in this case begins with Specialty Healthcare, 357
NLRB 934 (2011). Under Specialty Healthcare, the
Board begins its analysis with the question whether the
employees sought by a union is “readily as a group who
share a community of interest.” In determining whether
the group shares a community of interest, the Board con-
siders whether the employees are organized into a sepa-
rate department, have distinct job functions and perform
distinct work, are functionally integrated with the Em-
ployer’s other employees, have frequent contact with
other employees, interchange with other employees, have
distinct terms and conditions of employment, and are
separately supervised. United Operations, Inc., 338
NLRB 123 (2002).
In reaching the conclusion that the unit sought by Peti-
tioner is inappropriate, I rely particularly on the fact that
the Board will not approve of fractured units; that is
combinations of employees that have no rational basis.
Odwalla, Inc., 357 NLRB 1608 (2011); Seaboard Ma-
rine, Ltd., 327 NLRB 556 (1999). Furthermore, I con-
clude that the Employer has carried the burden of prov-
ing there is no rational basis for excluding some assem-
bly employees while including other assembly employ-
ees.
First, the unit sought by Petitioner does not track any
lines drawn by the Employer, such as classification or
department. The organization chart in evidence is clear
that all assembly employees—whether employed in the
undercarriage area or not—are considered to be in the
same area and under the direct supervision of Production
Manager Dallas Gravelle. Moreover, the wage grid in
evidence makes clear that undercarriage employees are
considered assemblers for purposes of determining start-
ing wage rates and wage progressions. Thus, undercar-
riage employees do not have a separate wage structure.
In addition, there is no evidence that undercarriage em-
ployees have a separate job classification—they, like
over 40 other employees employed by the Employer in
assembly, are considered assemblers.
Also relevant is the functional integration between
employees sought by Petitioner and other employees in
the assembly area. Undercarriage employees manufac-
ture the “bottom” of compact track loaders, while other
assembly employees employed by the Employer manu-
facture and install the cab that is the “top” of the compact
track loaders. It is also the case that undercarriage em-
ployees manufacture undercarriages for Caterpillar that
are shipped directly to Caterpillar once they are complet-
ed, but the record fails to establish how much time un-
dercarriage employees devote to Caterpillar undercar-
riages compared to undercarriages used in Employer
products. Thus, the fact that some undercarriages manu-
factured by the Employer are shipped directly to custom-
ers, does not lessen the fact that for one of the products
manufactured by the Employer, there is significant func-
tional integration between undercarriage employees and
other assembly employees.
While the evidence regarding interchange (that is other
assembly employees working in the undercarriage area
when needed or undercarriage employees working in
other assembly areas when needed) is somewhat conclu-
sionary, it appears that anyone qualified in the assembly
area can volunteer for overtime in any assembly jobs
where overtime is needed, as long as they are able to
perform the jobs involving overtime.
The positions Petitioner seeks to represent—as well as
other assembler positions—require similar skills and
education in order to be hired. While each area of assem-
bly has tools unique to its part in the manufacture pro-
cess, there is no specialized training required in order to
work in any of the assembly areas. On the contrary, what
training is required is on-the-job, and related to the
unique equipment or tools utilized, rather than to specific
skills required to qualify for the job. See, Northrup
Grumman Shipbuilding, Inc., 357 NLRB 2015 (2011).
Undercarriage employees do not have unique benefits,
working conditions or wages, further evidence that the
group sought by Petitioner is a fractured unit.
In reaching the conclusion that the unit sought by Peti-
tioner is a fractured group, I have considered and reject
Petitioner’s arguments that the undercarriage/service
parts employees are a readily identifiable group. In gen-
eral, Petitioner’s argument rests on assumptions that be-
cause there is a differentiation in the parts being manu-
factured, and therefore there is some differentiation in
tools and equipment used as well as location of work,
that is sufficient to constitute a “readily identifiable
group.” For example, Petitioner argues that they are
readily identifiable because the Employer’s organization-
al chart includes “undercarriage” as a heading and then
lists the employees. Petitioner is correct, except that it
omits the fact that service parts employees (whom Peti-
tioner would include) have their own heading. Thus,
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from my perspective, the headings mean nothing—they
do not establish that the Employer has an organizational
or departmental structure separating undercarriage em-
ployees from other assembly employees. Otherwise—
and contrary to the position taken by Petitioner both at
the hearing and in its posthearing brief—service parts
employees are a separate departmental or organizational
area from undercarriage employees.
Petitioner also argues that the fact that the undercar-
riage employees have a separate team lead means that
they are readily identifiable as a group. However, Peti-
tioner and the Employer agree that team leads are in the
unit, and therefore not 2(11) supervisors. It is clear that
Board law examines whether employees are separately
supervised by individuals who are not included in the
bargaining unit when determining the existence of a
readily identifiable group. Petitioner also argues that it is
significant that the undercarriage employees have their
own delineated physical space in the Employer’s facili-
ty—albeit space within a large room containing other
assembly functions. On the other hand, I find more com-
pelling the fact that the undercarriage employees are
within 30 feet of other assembly employees and their
work is functionally integrated with the work of other
assembly employees.
Petitioner relies primarily on DTG Operations, Inc.,
357 NLRB 2122 (2011) to argue in favor of its position.
However, DTG Operations did not involve an analysis of
whether the group sought by the union was a fractured
unit; rather it involved the question whether the Employ-
er established an overwhelming community of interest in
order to rebut the appropriateness of the unit sought by
the union. In any event, the facts of DTG are significant-
ly different than the instant case. While DTG makes clear
that functional integration by itself is not sufficient to
establish overwhelming community of interest, it did so
in the context of facts where the employees sought by the
union were separately supervised (which is not present
here), where the employees sought by the union had dif-
ferent work schedules, work areas and incentives (which
are not present here), and where employees sought by the
union had different job functions and duties, as well as
skills and qualifications (which are not present here).
The Appropriate Unit for Collective Bargaining
Petitioner has not rejected going to an election in an al-
ternative unit. On the other hand, because the Employer
has proposed three alternative appropriate units but pro-
vided little evidence to distinguish any of the three alter-
natives from one another, it is difficult to determine what
constitutes an appropriate unit for collective bargaining.
According to the Employer’s posthearing brief, “the
Employer contends that the smallest appropriate unit
must also include Welding and Fabrication” (as well as
all other assembly employees). Just a paragraph later in
its posthearing brief, the Employer argues that warehouse
employees, quality inspectors and maintenance employ-
ees should also be included in any unit found appropri-
ate. However, in its conclusion, the Employer argues yet
a different position: “the smallest appropriate unit must
include Assembly, Welding, Fabrication, Warehouse,
Quality, Test Track, and Maintenance.”
Based on the record evidence that exists, I conclude
that the smallest appropriate unit for collective bargain-
ing is a unit of the 59 employees employed in assembly.
My reasons for doing so are largely related to my reasons
for rejecting the unit sought by Petitioner. That is, it is
clear that the assembly employees constitute a separate
department or organizational group at the Employer’s
facility. This conclusion is supported by the organiza-
tional chart, by the fact the assembly employees are sepa-
rately supervised, and by the fact that the Employer’s pay
grid lists assemblers as a separate classification with a
separate wage progression. Moreover, this group of em-
ployees is similarly classified and the group of assem-
blers performs a unique function when compared to other
employees employed by the Employer, and that function
is highly integrated within the assembly area. On the
other hand, welders, fabricators, quality control and
warehouse employees are separately supervised, have
their own separate wage progressions on the Employer’s
pay grid, and are represented as separate areas or de-
partments on the Employer’s organizational chart.
There is no evidence (except for temporary and per-
manent transfers) that assembly employees perform the
work of employees in other areas, or that employees in
other areas perform the work of assembly employees.
According to the record, two welders are temporarily
transferred to assembly jobs (all other temporary trans-
fers involved nonassembly employees transferring to
nonassembly areas). I conclude that this limited evi-
dence does not support a conclusion that employees other
than assembly employees must be in the unit. There have
also been five permanent transfers in the last 5 years
where assemblers have permanently transferred to jobs in
other departments or employees in other departments
have permanently transferred to assembly but permanent
transfers are given less weight by the Board. Bashas,
Inc., 337 NLRB 710, 711 fn. 7 (2002).
It is also clear that welders—and to a lesser extent fab-
rication employees—have unique skills and use unique
tools when compared to assembly employees. The pay
grid establishes that welders are the highest paid employ-
ees, suggesting that they have specialized skills. Moreo-
ver, there is no evidence that welders or fabrication em-
A.S.V., INC. 1257
ployees are included when the Employer seeks volun-
teers for overtime work in the assembly area.
Finally, I conclude that in arguing that the smallest ap-
propriate unit must also include the welding and fabrica-
tion employees, the Employer is guilty of exactly what it
accuses Petitioner of doing—advocating a fractured unit.
Welders, fabrication and painting employees are under
the same supervision—by Manager Joan Hoeschen and
are shown on the organizational chart as being in the
same department. Yet the Employer stipulated to the
appropriateness of a unit of employees consisting of sole-
ly the painters employed by the Employer. Now the
Employer is advocating taking the two remaining classi-
fications commonly supervised and organized with the
painters, and adding them to a unit of assembly employ-
ees, with little justification beyond the fact there have
been a limited number of temporary and permanent
transfers.
I acknowledge that there is evidence of functional in-
tegration between the assembly employees and other
employees, including not only welding and fabrication
employees, but also warehouse and quality control em-
ployees. However, as the Board made clear in DTG Op-
erations, supra, more important than functional integra-
tion is the existence of common supervision, common
skills and job functions, and common classifications
and/or departments. None of these factors support in-
cluding other employees with the assemblers in the bar-
gaining unit.
In view of the foregoing and the record as a whole, I
find the following employees constitute an appropriate
unit for collective bargaining:
All full-time and regular part-time assemblers em-
ployed by the Employer at its Grand Rapids, Minne-
sota facility, including team leads; excluding all other
employees, temporary employees, managers, guards
and supervisors as defined in the Act, as amended.