Mauser Corp.

National Labor Relations Board - Administrative Judge Opinions

Feb 2, 2009

31-RC-008715 (N.L.R.B. Feb. 2, 2009)

JD(SF)–06–09
Rancho Cucamonga, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MAUSER CORP.
Employer
and Case 31-RC-8715
UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION, LOCAL 1167
Union
Timothy A. Davis, Esq., (Constangy, Brooks
& Smith, LLC) of Kansas City, Missouri,
for the Employer.
Jeffrey S. Wohlner, Esq., (Wohlner, Kaplon,
Phillips, Young & Cutler) of Sherman Oaks, California,
for the Union.
REPORT ON CHALLENGED BALLOT
WILLIAM G. KOCOL, Administrative Law Judge.
Statement of the Case
The United Industrial & Service Workers of America (herein the Petitioner) filed a petition
on August 15, 2008, to represent certain employees of Mauser Corp. (herein the Employer).
The United Food and Commercial Workers International Union, Local 1167, (herein the Union)
represented employees of the Employer and joined the election process. The parties agreed to
an election in the following unit of employees.
Included: All full-time and regular part-time production, maintenance, shipping
and receiving employees and truck drivers employed by the Employer at its
facility located at 9449 Santa Anita Avenue, Rancho Cucamonga, CA
Excluded: Office clerical employees, professional employees, lab technicians,
QC manager, all other employees, guards and supervisors as defined in the Act.
An election held on September 25, 2008, resulted in 15 votes for the Union, 2 votes for
the Petitioner, and 13 votes against being represented by either the Union or the Petitioner.
The run-off election held on November 5, 2008, resulted in 16 votes for the Union, 15 votes
against the Union, and 1 challenged ballot. A hearing was held on December 16, 2008, to
resolve the challenged ballot.
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Facts
The Union challenged the ballot of Jose Luis Tafoya on the basis that he is a
supervisor/management employee and therefore ineligible to vote. No evidence was submitted
at the hearing to show that Tafoya is a supervisor. Rather, the focus of the Union’s evidence is
that the Employer and the Union had previously agreed to exclude Tafoya from the unit. The
Employer contends that notwithstanding Tafoya’s exclusion from the historical unit, Tafoya
works as a truck driver and therefore should be entitled to vote as part of the stipulated unit.
The facts described below are largely undisputed.
The Union had a collective bargaining relationship with Russell-Stanley. The most
recent contract between them ran from January 32, 2005 to January 30, 2009 and covered a
unit of the:
Employer’s production, maintenance, shipping and receiving employees and
truck driving employees, but excluding all supervisors, lab technicians, QC
manager, office clerical, professional and guards and other employees.
For purposes of this proceeding, I conclude that the stipulated unit and the historical unit are
essentially identical. At some point during the term of the contract the Employer purchased
Russell-Stanley and adopted the contract.
Christopher A. Marentes is a business agent for the Union and is responsible for
representing the unit employees at Mauser. Apparently Tafoya, a long-term and skilled unit
employee, informed the Employer that he might quit if he were not paid more money. The
Employer raised the matter with the Union, explaining that it already had difficulty retaining
employees in the second truck driver position and did want to lose Tafoya. On
November 16, 2006, Marentes sent Stewart Gallaher, then the Employer’s plant manager, the
following letter regarding Tafoya.
I am sending you this letter to confirm what we discussed at the meeting we had
on November 13, 2006 in regards to the truck driver, Jose Tafoya. The
understanding we have is that the truck driver position will remain intact per the
contract. Jose Tafoya will be offered a coordinator position to oversee truck
driver position that is union. The Company will replace the position left open by
Jose Tafoya with a union member. We understand that the coordinator position
is a part of management in accordance to the job description that was forwarded
to the Union. Let me know if you are not in agreement with this understanding.
The Employer did not reply, thereby signaling its agreement. The job description
mentioned above is for the position “Transportation Coordinator.” The “Reporting Relationships”
for the position is “Shipping/Receiving Manager.” The “Job Summary” is “To manage the plants
fleet of trucks, including maintenance and repair, as well as administration of acquiring and
replacing vehicles.” The job description lists ten “Essential Functions” none of which are
supervisory or managerial in nature, at least as defined by the Act. Tafoya accepted the offer of
the transportation coordinator position, received a pay raise, was no longer part of the unit, and
withdrew his membership from the Union. Thereafter Tafoya’s name no longer appeared on the
seniority list of unit employees that the Employer regularly supplied to the Union, the most
recent being September 2008. Nonetheless Tafoya continued to perform work as a truck driver;
in addition he oversaw and trained the employee who filled his former position as a unit truck
driver. Again, there is no evidence that Tafoya performed any supervisory or managerial
functions as defined by the Act.
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Tafoya’s name, however, did appear on the Excelsior lists the Employer provided for the
first and second election in this matter. Tafoya voted without challenge in the first election;
Marentes explained this was on oversight on his part.
Analysis
The Employer and the Union agreed that Tafoya would be excluded from the historical
unit. Of course, the Petitioner had no knowledge of this arrangement but the Petitioner is no
longer involved in this proceeding. At this point this case is the functional equivalent of a
decertification election. In these cases the election must be conducted in a proper existing unit
and not in a newly constructed unit. Under these circumstances it is clear that Tafoya ballot
should not be counted. I recognize, as the Employer points out in its brief, that typically in an
RC petition case the Board applies a three-part test in resolving issues of unit placement. Butler
Asphalt, 352 NLRB No. 32 (2008); Caesar’s Tahoe, 337 NLRB 1096 (2002). But even applying
that test, I reach the same result. I first conclude that the stipulation is ambiguous because
while it includes “truck drivers” it excludes “all other employees.” While Tafoya performed some
truck driving functions his title was “Transportation Coordinator.” Thus, under the stipulation he
could be both included as a truck driver and excluded as a transportation coordinator under all
other employees. Turning next to the parties’ intent, it seems to be clear that as between the
Employer and the Union they intended to have the election in the existing unit and not in a
different unit. The Employer, having sought and obtained Tafoya exclusion from the unit should
be held to its part of the bargain absent evidence of mutual consent otherwise. Under these
circumstances I find it unnecessary to address the Union’s argument that agreement it had with
the Employer was akin to an agreement covered by Norris-Thermador, Corp., 119 NLRB 1301
(1958).
Conclusion
I conclude that the challenge to the ballot of Jose Luis Tafoya is sustained and the case
be remanded to the Regional Director for the issuance of an appropriate certification of
representative.1
Dated, Washington, D.C. February 2, 2009
____________________
William G. Kocol
Administrative Law Judge

1 Pursuant to Sec. 102.69 of the Board’s Rules and Regulations, any party may, within fourteen (14)
days from the date of this decision, file with the Board in Washington, D.C., an original and eight (8)
copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing them shall
serve a copy on the other parties and shall file a copy with the Regional Director of Region 31. If no
timely exceptions are filed, the Board will adopt the recommendations set forth herein.