Keystone Auto Parts

National Labor Relations Board - Board Decisions

Dec 31, 1984

273 N.L.R.B. 1323 (N.L.R.B. 1984)

KEYSTONE AUTO PARTS 1323
Keystone Auto Parts, Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW). Case
6-CA-17118
31 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 July 1984 Administrative Law Judge
Marion C. Ladwig issued the attached decision.
The Respondent filed exceptions. The General
Counsel filed an answering brief, incorporating his
brief to the judge, and a motion to strike the Re-
spondent's exceptions.'
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Keystone
Auto Parts, Inc., McKeesport, Pennsylvania, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order.
1 The General Counsel has moved that the Board strike the Respond-
ent's exceptions because they were not served properly and because they
fail to identify the portion of the judge's decision to which the Respond-
ent is excepting, contain no reference to any pages of the official record,
and fall to cite any authority for any positions taken Contrary to the
General Counsel's assertions, the record shows that the exceptions were
served properly As for the contention that the exceptions were other-
wise deficient, we find that the exceptions meet the requirements of Sec
102 46(b) of the Board's Rules and Regulations inasmuch as they specify
parts of the judge's decision to which objection is made, and they also
generally dispute certain of his conclusions Accordingly, the General
Counsel's motion is denied
2 Contrary to the judge's finding, we find that the record is not clear
as to whether employee McGraw signed a dues-checkoff card Accord-
ingly, any moneys owed to the Union for loss of dues caused by the Re-
spondent's failure to apply the collective-bargaining agreement to
McGraw must run from the date of the Union's first demand to the Re-
spondent that the union-security clause be applied to McGraw
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This
case was tried at Pittsburgh, Pennsylvania, June 5, 1984.1
The charge was filed by the Union February 17 and the
complaint was issued March 30.
After agreeing to include the classification "computer
operator" in the collective-bargaining agreement cover-
ing the office employees, the Company hired a computer
1 All dates are from July 1983 until June 1984 unless otherwise indicat-
ed
operator at a substandard rate, without benefits, and later
claimed that he was a part of management and not a
member of the bargaining unit. The primary issue is
whether the Company, the Respondent, unlawfully re-
fused to bargain by unilaterally withdrawing recognition
from the Union as the representative of the computer op-
erator classification, violating Section 8(a)(5) and (1) of
the National Labor Relations Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
General Counsel's brief, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a Pennsylvania corporation, retails and
wholesales auto parts at its store in McKeesport, Penn-
sylvania, where It annually receives goods valued over
$50,000 directly from outside the State and derives over
$500,000 in gross revenues. The Company admits and I
find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Hiring of Computer Operator
In December 1982 the Company purchased a new
computer, expecting it to be in operation in 3 or 4
months About a year and a half later, there remained
several months before the computer could be expected to
be in full operation.
One problem was that the computer was purchased
with standard software that was not appropriate for
keeping inventory in the auto parts business, and the
Company decided not to go to the expense of having the
computer reprogrammed to fill its particular needs. The
other problem was that its employees were not properly
trained to work with the software.
The Company assigned the work of entering the in-
ventory control data into the computer to computer op-
erator Ethyl Germack, to office employees Francis
Adams and Marsha Haberjak, and to a member of the
store employees' bargaining unit, inventory clerk Bonnie
Stern. At the time, only Stern was represented by the
Union. Germack and the other office employees were ex-
cluded from the bargaining unit.
On July 18 a consent election was held in a unit of
"All office clerical employees, including accounts receiv-
able clerks, accounts payable clerks and computer opera-
tors," and the Union was certified July 27. Meanwhile,
the Company was dissatisfied with the progress of the
work on the computer. It laid off operator Germack
before the election, but agreed with the Union to retain
the classification of computer operator in the bargaining
unit.
Instead of recalling and training computer operator
Germack or hiring a fully trained computer operator, the
Company arranged for part-time employees of CDA, the
computer company, to come in and load the computer
273 NLRB No. 74
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the inventory data. When the Union protested that
this was bargaining unit work, the Company laid off the
part-time CDA employees and assigned Francis Adams,
the accounts receivable clerk, to work as the computer
operator in the afternoons. (She had helped select the
computer and was the most knowledgeable office em-
ployee in its operation.) Adams was being paid $7 an
hour, although the wage rate of computer operator Ger-
mack (as well as the accounts payable clerk) had been
$4.90 an hour.
In the collective bargaining that followed, the Compa-
ny and Union specifically included the computer opera-
tor classification in the contractual bargaining unit, along
with the accounts receivable and accounts payable
clerks. In an addendum to the store employees' existing
agreement, the parties agreed that each of the office em-
ployees would receive a 20-cent increase, raising Adams'
wage rate to $7.20 an hour and the accounts payable
clerk to $5.10 an hour.
Adams continued to work in the afternoons (at her
$7.20 accounts receivable clerk rate) as a part-time com-
puter operator until January 3, when the Company hired
computer operator Robert McGraw to work part time as
"part of management" at $4.50 an hour, without contrac-
tual benefits. McGraw was a student at a computer
school. He had had experience with computer inventory
work in the auto parts industry, but he was not trained
to work with the Company's computer software Adams
assisted him in learning to load the inventory data into
the computer, performed computer functions that he was
not trained to do, and continued to do part of the inven-
tory work. The Company permitted McGraw to set his
own working hours, and between January 3 and June 5
(the date of trial), he averaged working 30 to 33 hours a
week (as compared to the 35 hours that full-time em-
ployee Adams was working) McGraw was not paid time
and a half for Saturday work, as required by the collec-
tive-bargaining agreement.
In late January McGraw signed a dues-checkoff card
(Tr. 13) for his union dues to be checked off under the
contractual union-shop provision. The Company refused
to check off his dues, informing the Union that McGraw
was a salaried, part-time employee, who "was going to
be part of management" (Tr. 13).
B. Contentions and Concluding Findings
The General Counsel contends that the Company vio-
lated Section 8(a)(1) and (5) by unilaterally withdrawing
recognition from the Union as the collective-bargaining
representative of any employee classified as a computer
operator.
The Company's principal defense is that McGraw is
not a computer operator, but a "computer programmer"
The undisputed testimony is to the contrary. Accounts
receivable clerk Adams credibly testified that neither she
nor McGraw does any computer programming and that
there is no difference in the type work McGraw and
computer operator Germack did (Tr 87-89) McGraw
credibly testified that he was merely doing data entry
and inventory control work, not the work of a computer
programmer (Tr. 116). I therefore reject this defense.
The Company contends that McGraw is not in the
bargaining unit because he is a part-time employee, set-
ting his own hours, but there is no basis in either the cer-
tification or the collective-bargaining agreement for ex-
cluding part-time employees. The Company contends
that McGraw is only a temporary employee, despite his
long tenure and the contractual provision limiting a tem-
porary assignment to 2 weeks. Evidently because
McGraw clearly has no supervisory or managerial au-
thority, the Company no longer appears to contend that
this underpaid employee is "part of management."
I find that computer operator McGraw is clearly a
member of the bargaining unit and that the Company un-
lawfully refused to bargain by unilaterally withdrawing
recognition from the Union as the representative of the
computer operator classification, violating Section 8(a)(5)
and (1) of the Act. El Centro Health Center, 266 NLRB 1
(1983).
CONCLUSIONS OF LAW
By unilaterally withdrawing recognition from the
Union as the bargaining representative of the computer
operator classification, the Company engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having unlawfully refused to include
the newly hired computer operator in the contractual
bargaining unit, it must make the employee whole for
any loss of wages and other benefits, and the Union
whole for any loss of dues resulting from its failure to
honor the employee's dues-checkoff authorization, plus
interest as computed in Florida Steel Corp., 231 NLRB
651 (1977). In the absence of a specific wage rate negoti-
ated for the computer operator, I find it appropriate to
base the employee's backpay on the former rate of $4.90
an hour, plus the 20-cent increase negotiated for other
office employees.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Keystone Auto Parts, Inc, McKees-
port, Pennyslvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Unilaterally refusing to recognize International
Union, United Automobile, Aerospace and Agricultural
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
KEYSTONE AUTO PARTS 1325
Implement Workers of America (UAW) as the exclusive
bargaining representative of the computer operator clas-
sification.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make computer operator Robert McGraw whole
for any loss of wages or other benefits, and the Union
whole for any loss of dues, suffered as a result of its fail-
ure to comply with its collective-bargaining agreement
with the Union, in the manner set forth in the remedy
section of the decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its main store in McKeesport, Pennsylvania,
copies of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
3 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW) as the exclusive repre-
sentative of the computer operator classification.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make computer operator Robert McGraw
whole for any loss of wages or other benefits, and the
Union whole for any loss of dues, suffered as a result of
our failure to include him in the bargaining unit, plus in-
terest.
KEYSTONE AUTO PARTS, INC.