Cardox Division of Chemetron Corporation

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1202 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cardox Division of Chemetron Corporation and
Teamsters Union Local No. 115, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
4-CA- 10695
September 30, 1981
DECISION AND ORDER
BY MIMBIERS FANNING, JENKINS, AND
ZIMMERMAN
On September 24, Administrative Law Judge
Benjamin Schlesinger issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the Administrative
Law Judge's rulings, but to adopt his findings and
conclusions only to the extent consistent herewith.
The Administrative Law Judge found that al-
though Respondent voluntarily recognized Team-
sters Union Local No. 115 as the collective-bar-
gaining representative of a unit of Respondent's
field servicemen in August 1979, it did not violate
Section 8(a)(5) and () of the Act when it later re-
fused to bargain with the Union since the unit, in
fact, was inappropriate. The General Counsel has
excepted to the Administrative Law Judge's find-
ings and conclusions, contending, inter alia, that
the evidence requires a finding that following its
voluntary recognition of the Union, Respondent
was obligated to bargain in good faith for a reason-
able time, and failed to do so. We find merit in the
General Counsel's exceptions.
Respondent is engaged in the production and dis-
tribution of carbon dioxide at 10 plants and ap-
proximately 40 distribution "depots." Respondent
divides its operations among geographic "regions,"
one of which is the Eastern Region, roughly en-
compassing the Northeastern United States, in
which the present dispute arose. Four field service-
men service the Eastern Region. One serviceman is
assigned to the New England area, and a second to
the Greater Metropolitan Connecticut-New York-
New Jersey area. The areas south of metropolitan
New York-New Jersey are divided between two
employees, James Hurley and Charles Pennington.
Hurley services eastern Pennsylvania, southern
New Jersey, and all of Delaware. Pennington serv-
258 NLRB No. 159
ices all of Virginia and Maryland and the southern
area of Pennsylvania around York.
On June 29 and July 2,' respectively, Pennington
and Hurley signed cards authorizing the Union to
represent them. On August 13, two representatives
of the Union, Oliver and Gray, presented Wyatt,
the manager of Respondent's Delaware City, Dela-
ware, facility, with a letter and a recognition agree-
ment, and requested that Respondent recognize and
bargain with the Union as the collective-bargaining
representative of the field servicemen employed at
the facility. Wyatt read the letter, personally
checked the authorization cards, and then executed
the recognition agreement. Wyatt subsequently
learned that company policy required that all such
recognition agreements be signed by John Man-
ning, Respondent's director of employee relations.
After receiving the agreement and making some
minor corrections, Manning executed it on August
27.
Oliver and Gray subsequently met with Penning-
ton and Hurley to discuss contract proposals with
them, and they requested from Respondent certain
data concerning the employees' terms and condi-
tions of employment. The requested information
was provided by Respondent in a letter dated Sep-
tember 17. Gray had difficulty scheduling an initial
bargaining session with Manning, but a meeting
was eventually arranged for October 17. Thomas
Clark appeared on Respondent's behalf instead of
Manning.
No agreement was reached at this meeting. At
the conclusion of the meeting, it was agreed that
Respondent would get back in touch with the
Union. When Respondent failed to do so, the
Union repeatedly took the initiative in attempting
to arrange further talks, but was not successful.
Manning finally contacted Gray again on or about
November 29 to schedule a meeting for December
5. Prior to this contact, Regional Service Man-
ager O'Reilly had spoken to Hurley and told him
that Pennington was no longer in the Union. A few
days later O'Reilly had again told Hurley this, and
said that Respondent would not negotiate a con-
tract for just one employee. Hurley eventually
stated that he would "disassociate" himself from
the Union. Respondent later obtained written state-
ments from both Hurley and Pennington stating
that each was "disassociating" from the Union.
On December 4, Manning canceled the meeting
scheduled for the next day. On December 6, Re-
spondent wrote to the Union stating that only one
employee in the unit worked in the Union's juris-
dictional area, and that there was thus no "reason
All dalc. herein arc 7 17 1 unl. oth. c r i noted
1202
CARDOX DIVISION OF CHEMNETRON CORPl'ORATION
to cover him under a Local 115 agreement." Nei-
ther the appropriateness of the unit nor the Union's
support among the employees was questioned at
that time. To date, Respondent has not resumed
bargaining with the Union.
The Administrative Law Judge concluded that a
unit composed only of Hurley and Pennington is
inappropriate because these employees do not share
a community of interest distinct from that of the
other two field service employees, and therefore
that Respondent had no obligation to bargain with
respect to this unit. We do not agree. This is not a
case in which the Board is being asked to define an
appropriate unit, to direct an election, or to certify
the results of such an election. It is therefore un-
necessary to decide whether we would find the
unit appropriate were the issue raised in such a
context. 2 As the Board has held:
The Board may appropriately issue a bargain-
ing order covering a unit which it could not
have initially certified under the Act, but con-
cerning which the parties have knowingly and
voluntarily bargained.'
Having voluntarily recognized and bargained
with the Union as the collective-baigaining repre-
sentative of a unit composed of Pennington and
Hurley, Respondent argued for the first time at the
hearing herein that the unit is inappropriate be-
cause the employees lack a distinct community of
interest. We reject this belated attempt to repudiate
the voluntary recognition. 4 A contrary holding
would fly in the face of our statutory obligation to
promote stability in bargaining relationships.
In addition to its unit composition argument dis-
cussed above, Respondent contends that it was
privileged to withdraw recognition on December 6
To the extentl that he Duluth Glass Block Store Comrpaun 7 NLRB
1064 ( Iq4), may he read to the contrary, it is oerruled.
International Union. United Mine Worers olf '4enlrca (Jone and Laugh-
hin Sled Corporation. et al. 83 NLRB 916 (1949), relied on bh Respond-
ent and the Administrative Lau Judge. is distinguishable. In that calse the
unit as indeterminate, because the parties had not agreed on its compo-
sition and had expressly requested the Board not to make any specific
unit finding. The Board noted that a specific unit determination is basic
to a finding of a refusal to bargain and the remedial order which custom-
arily accompanies it. This is so because the Board's order must be definite
in specifying the unit with respect to sshich a respondent is obligated o
bargain. The specific unit determination need not. hs escr. be one made
in the first instance by the Board Where the parties seiluntaril 5 enter
into bargaining ith respect to a unit hich is clearly defined. the ration-
ale of Jones and Laughlin does not require that the Board make its o ni
finding of appropriateness In the instant case. the agreed-upii unit's
composition was clear and undispllted friim the time of recogntionl)
-Ilrnio/l Electric Power Cooperatrl I.c rl.. 250 NL RB 1132. 11313 I9(I))
There. the employer argued that it had no dul 5 to bargain because the
unit included a statutor. supcrsoSr and sas Ihereforl; ilapprprillle
That supervisor (the lead load dispalchr) had notl been incllltded ill il'e
certified unit, hut as subhsequentls added to it by agreement f' the pr-
ties during negoiations for a collectisc-bargaulng greCCnilt Ih tifat
case the respondentl as ordered t recogllcu arid to h;lrgalll sid lhc
union
' Berhbigh. ml., 233 NLRII 1476, 1444 (1977)
because the Union no longer enjoyed the support
of the two employees in the unit. It is well estab-
lished, however, that after an employer voluntarily
recognizes a union, the union enjoys an irrebuttable
presumption of continuing majority status for a rea-
sonable period of time.' The General Counsel
argues that, in the instant case, such a period had
not elapsed when the Employer ceased bargaining.
We agree.
It is undisputed that representatives of Respond-
ent and the Union met to negotiate on just one oc-
casion, October 17. The Union had made numerous
attempts to arrange this initial session, which lasted
approximately 45 minutes and concluded with the
understanding that Respondent was to contact the
Union to schedule further negotiations. No subse-
quent meetings were ever held, however. Follow-
ing the October 17 meeting the Union was unsuc-
cessful in several attempts to arrange another meet-
ing with Manning. Finally, Manning suggested a
meeting on November 6, but failed to keep the ap-
pointment. Within a few days thereafter, Respond-
ent determined that Pennington no longer wished
to be represented by the Union. Respondent then
informed Hurley that he was alone in desiring rep-
resentation, and that Respondent would not sign a
contract covering only one employee. Thereafter,
Hurley too decided to withdraw from the Union.
Late in November a meeting between the parties
was scheduled for December 5, but Manning can-
celed this meeting on December 4 without explana-
tion, and then wrote to the Union on December 6,
stating that because only one employee worked
within the Union's jurisdiction, there was no reason
to cover him under a union agreement. In his letter
Manning did not question the appropriateness of
the unit or the Union's continuing majority status.
Thus, aside from certain limited information pro-
vided in letter form, the parties' entire exchange of
views during the 3-1/2 months prior to Respond-
ent's withdrawal of recognition took place in a
single 45-minute meeting. In evaluating the parties'
bargaining history to determine whether a reason-
able period has expired following a voluntary rec-
ognition, we look not simply to the passage of
time, but also to the use the parties have made of
that time. The Board has consistently declined to
set arbitrary standards by which such negotiations
might be judged. The single 45-minute session
which was held here, however, would not consti-
tute a "reasonable period" under any fair analysis.
Although Respondent argues that the Union was
inflexible in demanding at the meeting that a stand-
. ,' ( i , , tl hhh I l i tils, (; r .opra.tt . I Ih I It h ( I )h7): i,,'l/ r Plll,-
li( , l artl, 1il . I 57 NI RI 581 3 Ilt)4h). /rB mtl (o ttit te. /it.. 237
NI R ?'1. 275 I ,',ts
1203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ard form contract be signed, it appears that several
changes in wording were considered. Further, the
delays in arranging a second meeting are not attrib-
utable to the Union but rather to Respondent. In
these circumstances, we find that a reasonable time
for bargaining had not expired when Respondent
refused to coninue bargaining on December 6.6 Ac-
cordingly, the Union continued to enjoy an irrebut-
table presumption of majority status when Re-
spondent withdrew recognition on December 6,
and Respondent's refusal to bargain violated Sec-
tion 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning
of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. The Union is now, and since August 13, 1979,
has been, the exclusive majority representative of
all employees in the following bargaining unit:
All field servicemen not included in any other
bargaining unit, employed by Respondent at its
Delaware City, Delaware, facility, excluding
guards, office clerical employees and supervi-
sors as defined in the Act.
4. By Refusing, on December 6, 1979, and there-
after, to bargain with the Union upon request, Re-
spondent has refused to bargain collectively with
the Union as the exclusive collective-bargaining
representative of its employees in violation of Sec-
tion 8(a)(5) of the Act.
5. By the foregoing conduct Respondent has in-
terfered with, restrained, and coerced its employees
in the exercise of rights guaranteed them by Sec-
tion 7 of the Act, in violation of Section 8(a)(l) of
the Act.
6. The aforesaid unfair labor practices are unfair
labor practices proscribed by Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Cardox Division of Chemetron Corporation, Dela-
ware City, Delaware, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
with Teamsters Union Local No. 115, a/w Interna-
tional Brotherhood of Teamsters, Chaufeurs, Ware-
housemen and Helpers of America, by withdraw-
Cf. Cat'uga Crushed Sone. Inc.. 195 NLRB 543 (1972). cnfd 474 F2d
1380 (2d Cir. 1973).
ing recognition from the Union and refusing to
meet with its representatives to bargain with re-
spect to a unit composed of:
All field servicemen not included in any other
bargaining unit, employed by Respondent at its
Delaware City, Delaware, facility, excluding
guards, office clerical employees and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid unit with respect
to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understnading in a signed
agreement.
(b) Post at its Delaware City, Delaware, depot
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 4, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material. In addi-
tion, Respondent shall mail one signed copy of the
attached notice to employees Charles Pennington
and James Hurley upon receipt thereof from the
Regional Director for Region 4.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "l'Posted by
Order of the National Labor Relations oard" shall read "Posted Pursu-
alit to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIl.L. NOT' refuse to bargain collectively
concerning rates of pay, wages, hours, and
1204
CARDOX DIVISION OF CHEMETRON CORPORATION
other terms and conditions of employment
with Teamsters Union Local No. 115, a/w In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of
all our employees in the bargaining unit de-
scribed below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain collectively
with the Union as the exclusive representative
of the employees in the bargaining unit, and
reduce to writing an agreement reached as a
result of such bargaining. The bargaining unit
is:
All field servicemen not included in any
other bargaining unit, employed by Cardox
Division of Chemetron Corporation at its
Delaware City, Delaware, facility, excluding
guards, office clerical employees and super-
visors as defined in the Act.
CARDOX DIVISION OF CHEMETRON
CORPORATION
DECISION
STATEMINT 01: THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge:
This unfair labor practice proceeding was heard by me
in Wilmington, Delaware, on July 10, 1980, upon a com-
plaint which issued on January 30, 1980, alleging that
Respondent Cardox Division of Chemetron Corporation'
violated Section 8(a)(5) and (1) of the Act by failing to
bargain since August 27, 1979,2 with Charging Party
Teamsters Union Local No. 115, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (the Union), and by withdraw-
ing exclusive recognition of the Union on December 6.
The Union's charge was filed on December 12. Respond-
ent denies that it violated the Act in any way.
Upon the entire record herein, 3 including my observa-
tion of the witnesses and their demeanor, and my review
of the briefs filed by the General Counsel and Respond-
ent, I make the following:
' The name of Respondent as set forth in the complaint contains a ty-
pographical error. which is herewith corrected.
2 All dates hereinafter referred to occurred in 197'9. unless otherwise
stated.
I Both the General Counsel and Respondent moved to amend the offi-
cial transcript in numerous respects. There being no opposition. their mo-
tions are granted.
FINIINGS 01 FACr ANI) CONCI uSIONS OI LAW
I. JURISI)ICTION
I find. as Respondent admits. that it is and has been at
all times material herein a corporation duly organized
under and existing by virtue of the laws of the State of
Delaware and is engaged in the sale and distribution of
carbon dioxide, with one of its facilities, as more particu-
larly described herein, located at Delaware City. Dela-
ware (the facility). During the 12 months preceding the
issuance of the complaint, Respondent sold and shipped
from its facility products valued in excess of 50,000 di-
rectly to points located outside the State of Delaware. I
conclude, as Respondent admits, that Respondent is and
has been at all times herein an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act. I further find, as Respondent admits, that the
Union is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the
Act.
I. TrHE AI.EGEDI) UNFAIR ABOR PRACTICES
A. The Dispute
Because the facts of the dispute between Respondent
and the Union are not dispositive of this proceeding,
only a brief exposition is necessary. Two of Respondent's
field servicemen, Charles Pennington and James Hurley,
were asked to, and did, on June 29 and July 2, respec-
tively, sign cards authorizing the Union to represent
them. The Union demanded that Respondent recognize it
as the sole collective-bargaining representative of Re-
spondent's field servicemen. Respondent's depot man-
ager, Richard Wyatt, did so by signing a recognition
agreement on August 14. Wyatt was subsequently in-
formed that, as a matter of company policy, Respond-
ent's director of employee relations, John Manning, had
to sign all recognition agreements. The recognition
agreement was then sent to Manning, who signed it on
August 27 and returned it to the Union the following
day.
There followed a request by the Union to Respondent
for information which the Union felt necessary to pre-
pare for bargaining, Respondent's compliance by letter
dated September 17, numerous attempts by the Union to
arrange for an initial bargaining session, and finally the
first session attended by Distribution Manager Thomas
Clark, instead of Manning. At that time, the Union's pro-
posal was discussed and the meeting adjourned with the
understanding that Respondent was to contact the Union
for a new date for negotiations.
That date never came, for various reasons. Ultimately,
both Pennington and Hurley decided that they did not
desire the Union to represent them. Rather than using
that reason, Manning wrote to the Union stating that, be-
cause only one employee in the bargaining unit worked
in the Union's jurisdiction. 4 there was no reason to cover
' his objectimn apparently has its roots in the jurisdictional clause of
the draft greement presented h he Union. w\hich arguahl 3 limited the
coverage of the agreemen t to cnlplo ces sh,ho ssork ull liin the geographl-
cal jurisdiction of the Union. thus liminating 'enninlgton from the unit
120()5
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
him under a union agreement on the ground that "one-
man units are not subject to collective bargaining."
There has heen no bargaining since the Union's receipt
of this letter in early December.
B. The Issue
The General Counsel conceded at the hearing that, if
the unit of the two field servicemen is inappropriate, Re-
spondent cannot he held to have violated Section 8(a)(5)
of the Act. That correctly states the law, International
Union, United Mine Workers of America (Jones & Laugh-
lin Steel Corporation), 83 NLRB 916, 920 (1949), enfd.
182 F.2d 392 (D.C. Cir. 1950), cert. denied 340 U.S. 934
(1951): even if Respondent had voluntarily agreed to rec-
ognition of the Union based on its then assumption that
the unit was, indeed, appropriate. The Duluth Glass
Block Store Company, 76 NLRB 1064 (1948). That is so
because the Board's rule is not to "rubber stamp" parties'
desires, preferences, and agreements when the unit does
not conform to the Board's standards of appropriateness,
primarily because: "Section 9(b) of the Act provides that
'The Board shall decide,' and 'in each case' what unit is
appropriate for collective-bargaining purposes." Ilygrade
Food Products. Corporation, 85 NLRB 841, 847 (1949);
Crown Zellerbach Corporation, 246 NLRB 202 (1979).
The threshhold question presented in this proceeding
is whether the two-employee unit (assuming, arguendo,
that there is such a unit) is appropriate. As Respondent
correctly notes, in its thoroughly documented and excel-
lent brief, in Triangle Publications, Inc., 40 NLRB 1330,
1332 (1942), the Board stated:
[T]he Board has consistently refused to set apart as
an appropriate unit any subdivision or group of em-
ployees the nature of whose work is indistinguish-
able from that of other employees or whose work is
not functionally coherent and distinct.
Here, there are at least four field servicemen employed
by Respondent, and the issue presented is whether the
carving out of only two of them meets the Board's
policy.
C. The Field Servicemen
Respondent operates from approximately 50 separate
locations in the United States, 10 of which are "plants"
where it manufactures carbon dioxide and 40 of which
are "depots" where it distributes its product. ' Its oper-
ations are divided into geographic regions, the facility
being in the eastern region, whose manager is Leo
Vogel. The region's office is located in Union, New
Jersey, together with the region's sales and distribution
offices. The field service office, headed by Bernard
O'Reilly, its manager, is located only a few miles away
in Newark, New Jersey.
The eastern region covers essentially the northeastern
United States and contains eight depots, as well as seven
sales territories. None of these divisions are coincident
with the jurisdiction served by the four field service
areas, two of which are covered by Pennington and
Some locations have both plants and depots on the sa:lie site
Hurley. For example, Pennington services all of Virginia
and Maryland and the southern area of Pennsylvania
around York. In that area, there is only one depot, in
Suffolk. Virginia. Hurley services eastern Pennsylvania,
southern New Jersey, and all of Delaware. In that area,
there is only one depot, in Delaware City."
The four field servicemen work from their homes,
almost independently, primarily answering customers'
calls in their service areas, as well as installing and main-
taining Respondent's refrigeration and other equipment
on the customers' sites. They install, repair, and maintain
the equipment at those depots which do not have pro-
duction and maintenance employees. Finally, their work
assignments are not limited to their particular assigned
service areas. Because much of the territory encom-
passed in the eastern region is unassigned,' they frequent-
ly are assigned temporarily to unassigned areas, or to the
assigned areas of one of the other servicemen when con-
flicts exist or priorities dictate. Thus, the servicemen
have been rotated in the unassigned areas of the western
portions of New York and Pennsylvania. Hurley has
worked alone in New York; with Shane, Gerber, and
O'Reilly' to the north, Shane to the east, and Pennington
to the south of his assigned area; and has serviced cus-
tomers in the unassigned area of Buffalo, New York.
All four servicemen are paid (from Chicago, Illinois)
on the same salaried basis and have an identical package
of fringe benefits.9 O'Reilly approves their weekly time-
sheets and expense accounts, authorizes overtime, sched-
ules their vacations, and handles their grievances. He is
their supervisor, the depot managers having no authority
to direct their employment. He, and not a depot man-
ager, is in charge of hiring them, assigning their geo-
graphical areas, assigning them to other areas, and set-
ting work priorities. He, and not a depot manager, re-
views some of their orders for spare parts and is normal-
ly in personal contact with each serviceman at the job-
site or at his home about three times a day.
The only facts which the General Counsel alleges dis-
tinguish the employment of Pennington and Hurley from
the other two field servicemen and give some basis to
the conclusion that their employment is connected to the
facility are: (I) Respondent has classified them as operat-
ing out of the facility for all government reports, as well
as internal personnel files; (2) they have purchased parts
and tools utilizing credit established by the facility; (3)
they received telephone messages from the facility (Pen-
nington's business card contained, prior to Novemher 9,
only the number of the facility); and (4) they have made
visits to the facility to pick up parts, straighten up the
parts room, and pick up billing invoices.
i Clcarl. Respotdent's depot in I'hiladelphia is close to Hurler's serv-
ice area, as is Delaware CitI los'e o Pennington's.
'The tco other srv iceren are Dick Gerber. W ho lives i New Jersey
arid is assiglned to ridgeport and New Haven, Connecticut. and the metl
ropolitanl New York-Newark area. and Tom Shane, v: ho lives in Massa-
chusets and is assigned to al area south of Canada, including portions f
Coniiccticut. eastern upstate New York castal New Hampshire. Maine.
anid Massachusetts. ennington live, in Maryland Hrley. New Jersey
'In addition to being regional service nanager. O()Reilly des service
work when required.
'The employees at the facility ere paid on a hourly basis and have
a differertl package of fringe benefits.
1206
CARDOX DIVISION OF CHEMETRON CORt'()RATION
Item (1) refers primarily to a report under the Equal
Employment Opportunity Act. If it has any probative
weight, it is countered by Respondent's accounting
methods designating Pennington and Hurley as part of
the eastern region's service organization and chain of
command, which is wholly unconnected with the facili-
ty. Item (2) is similarly a matter of internal convenience,
unrelated to the employment functions of the service-
men. That telephone calls are received at the facility and
transmitted from there to Pennington and Hurley. [Item
(3)] is merely as ministerial function of an appropriate
convenient telephone number for customers to call. I
note that in October, Respondent hired at its Suffolk
depot a clerk who in November began to relay requests
to Pennington, who no longer receives his messages from
the facility. In any event, the telephone messages relayed
to Pennington before November constituted a minority
of the calls he received.
Finally, the visits paid by Pennington and Hurley to
the facility were occasioned by a prior salesman's having
ordered excessive parts and supplies, and it became nec-
essary to reduce what was still maintained in the parts
room before ordering new parts from Respondent's prin-
cipal distribution facility in Monee, Illinois, which were
delivered directly to the servicemen's homes and stored
there. In any event, the visits to the facility were few,
and the parts obtained at the facility constituted an insig-
nificant amount when compared to the employees' orders
of parts which were delivered to their homes or to their
customers' sites. Prior to November 9, Hurley went to
the facility about once a week; after November 9, once a
month. Pennington went only once a month before No-
vember 9; since then, even less.
There is clearly little to overcome Respondent's proof
that it is inappropriate to carve out any unit of less than
four from the four servicemen in the eastern region. No
two servicemen have any more community of interest
than any other two, and the work of any three cannot be
separated from the fourth. It is evident that there is not
only a similarity, but in some cases an identity, of scale
of earnings: employment benefits and other terms and
conditions of employment; kind of work performed;
qualifications and skills; common supervision and deter-
mination of labor relations policy; and relationship to the
administrative organization of Respondent. There is some
interchange of employment areas and some contact be-
tween Hurley and the other three servicemen. There is
an utter lack of supervision of the servicemen by anyone
at the facility. "'
Against this rather overwhelming showing of commu-
nity of interest, the General Counsel has little to rely
upon. Indeed, the General Counsel concedes that the
Board may only consider, but not give controlling
weight to, the extent of organization. Nor is geography
of controlling significance. T" The desires of the employ-
ees is the only factor present herein which favors a unit
of two. Even there, however. the employees have stated
that they no longer desire the Union to represent them. 12
I conclude that a unit of only two of the four field
servicemen is not an appropriate unit, NCR Corporation,
236 NLRB 215 (1978),.'3 and that Respondent has not
violated Section 8(a)(5) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
"' For this reason. Respondent's argument hal, at best. there i a one-
mall unit at the facilty may lend too, much alidity to the complaint
hereir. Rather. I find not cvcn the minimal contacts which whould suggest
thal the field sr.icemen are epl.oed h the facilit 5
" National Telephone Cornpan., Inc. 21 ' Nt.RB 634, 63 63h-7 (1475)
I do riot hold Ihat. if I had found hat all appropriate unit eisted. the
presel desires o te enplocees would constitult a defense to the Scc.
8(a)(5) complailil
':' See alo /t11omi ' Irt,'inurmig Company. 60 NLRI 1480X( (9hh)
State r,,, .Iturl .oanlsldhiol hilaurace Company. 158 NLRB 925 (96hh):
Internatioinal (Ceoenter,. Inc. 72 NI RB 1(43 (1947); Wy)reth. Incorporated,
73 NLRB 0864 (1947)
1207