Tiffin Enterprise, Inc.,

National Labor Relations Board - Board Decisions

Sep 23, 1981

258 N.L.R.B. 160 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tiffin Enterprise, Inc. t and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, Peti-
tioner. Case 8-RC-12046
September 23, 1981
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 8, an
election by secret ballot was conducted on March
14, 1980, among the employees in an appropriate
unit. At the conclusion of the election, the parties
were furnished with a tally of ballots which
showed that of approximately 268 eligible voters,
259 cast ballots, of which 104 were for, and 115
were against, the Petitioner, with I void ballot and
40 challenged ballots. There were no objections
filed.
Since the challenged ballots were sufficient in
number to affect the results of the election, and as
a preliminary investigation established the existence
of substantial and material factual issues, the Re-
gional Director for Region 8 issued a notice of
hearing on April 18, 1980. Thereafter, on June 9
and 10, 1980, a hearing was held before Hearing
Officer Richard H. Busch for the purpose of re-
solving the issues raised by the challenged ballots.
The hearing was conducted in accordance with
the provisions of Section 102.69(e) of the Board's
Rules and Regulations, Series 8, as amended. All
parties were represented and afforded full opportu-
nity to be heard, to examine and cross-examine wit-
nesses, to introduce relevant evidence, and to pres-
ent oral arguments at the hearing.
On December 1, 1980, Hearing Officer Busch
issued and served on the parties his Report on
Challenged Ballots. All of the challenged voters
were employed in the classification of "temporary
part-time" employees, a classification excluded
from the stipulated unit. In his report, the Hearing
Officer recommended that the challenges of the
ballots of 15 voters be sustained on the grounds
that they were laid-off employees with no reason-
able expectancy of recall, and that the challenges
to the ballots of 8 voters be overruled on the
grounds that they were full-time employees. 2 He
The name of the Employer appears as amended at the hearing.
2 In the absence of exceptions thereto, we adopt, proforma, the Hear-
ing Officer's recommendation that the challenges to the ballots of Brenda
Yoder, Laurel Twardzik, Susan Beidelschies, Ester Liebengood, Karen
Knaup, Doug Reinhard, Sandra Biller, Theresa Distel, Marie Drown,
258 NLRB No. 12
further recommended that the challenges to the
ballots of 16 other voters be overruled since he
concluded that these employees shared a communi-
ty of interest with the unit employees and that their
exclusion would be contrary to Board policy. He
therefore recommended that their ballots be
opened and counted, that a revised tally be issued,
and that an appropriate certification be issued.
Thereafter, the Employer filed exceptions, with a
supporting brief, limited to the recommendation
that these 16 challenges be overruled. The Em-
ployer contends that the latter 16 employees are
temporary part-time employees, and that, contrary
to the Petitioner, that classification was excluded
from the unit agreed to by the parties and that such
exclusion is not contrary to Board policy.
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.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employ-
er within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time production and maintenance em-
ployees, including shipping and receiving em-
ployees and warehouse and truckdriver em-
ployees employed by the Employer at its
Tiffin, Ohio facility but excluding all tempo-
rary part-time employees, technical employees,
office clerical employees and professional em-
ployees, guards and supervisors as defined in
the Act.
5. The Board has considered the Hearing Offi-
cer's report, the Employer's exceptions and brief,
and the entire record in this case, and hereby
Sheryl Krager, Rhonda Gray, Amy Mattson, Jean Snell, Donna Cox, and
Laurie Gillig be sustained. Furthermore, in view of our finding below,
we sustain these challenges on the additional ground that employees clas-
sified by the Employer as temporary part-time were excluded from the
stipulated unit. Additionally, in the absence of exceptions, thereto, we
adopt, pro forma the Hearing Officer's recommendation that the chal-
lenge to the ballot of Janet Reiter be sustained and that the challenges to
ballots of Carol Dentinger, Rose Mangus, Marjorie Shaw, Marsha Biller,
Bonita Stahlsworth, Daisey Kirian. Curtis Lloyd. and Michael McGown
be overruled.
160
TIFFIN ENTERPRISE, INC.
adopts the Hearing Officer's recommendations only
to the extent consistent herewith.
The Employer is engaged in the business of
fabricating laminated particle board and assembling
the fabricated pieces into stereo speaker cabinets on
a contract basis. It divides its work force into "full-
time" and "temporary part-time" classifications. 3
Employees in the temporary part-time classification
are subject to very different policies relating to
pay, benefits, hiring, and layoffs, from those appli-
cable to full-time employees. Full-time employees
receive numerous benefits, including paid sick
leave, paid holidays, I to 4 weeks' paid vacation
per year, bereavement pay, company reimburse-
ment for work-related schooling, paid life, hospital-
ization, and major medical insurance, and participa-
tion in profit-sharing and production bonus plans.
None of these benefits is available to employees in
the temporary part-time classification. Temporary
part-time employees are hired on an as-needed
basis. When the Employer has sufficient orders to
operate at or near capacity, it may utilize tempo-
rary part-time employees extensively, and these
employees may work 40 hours per week for sever-
al consecutive weeks performing the same work as
the Employer's unskilled full-time employees. The
Employer experiences wide fluctuations in orders,
however, and a correspondingly variable demand
for labor. Whereas full-time employees accrue se-
niority and, if laid off, enjoy various recall and
bumping rights, when temporary part-time employ-
ees are laid off they have no right of recall, and al-
though the Employer sometimes offers them em-
ployment again when demand increases, there is no
defined pool from which employees are selected.
Further, there is a high degree of turnover among
temporary part-time employees. Thus, in the 22
months between May 1978 and February 1980,
more than 600 employees were hired into and then
left the temporary part-time classification, and of
this number 358 were in the classification for less
than 2 months. Additionally, although the Employ-
er's workload had required a complement of as
many as 113 temporary part-time employees be-
tween January and May 1980, at the time of the
hearing in June 1980 no temporary part-time em-
ployees were employed.
A previous election involving these parties was
held in 1976. As here, that election was conducted
pursuant to a Stipulation for Certification Upon
Consent Election. In that earlier proceeding, the
Petitioner was represented by its attorney, Hugh
3 A single employee, James Hedges, is classified by the Employer as
"regular part-time." He is a college student and, unlike employees classi-
fied as "temporary part-time," he works on a regularly scheduled basis.
The parties appear to have regarded his situation as unique, and his status
is not in issue.
Smith, and the Employer was represented by its at-
torney, George Lynch. Prior to entering into the
stipulation, these two discussed the composition of
the unit and whether temporary part-time employ-
ees should be included. It is undisputed that the
parties agreed to exclude temporary part-time em-
ployees from the stipulated unit, that none of these
employees was included on the voting eligibility
list, and that none of them voted or attempted to
vote in the 1976 election. The Union lost the elec-
tion.
On January 23, 1980, Smith again filed a repre-
sentation petition on behalf of the Petitioner. On
February 2, Lynch telephoned Smith with regard
to the filing of the petition, and apprised him that
the Employer still employed employees who
worked to supplement the regular work force and
identified such employees as those who had been
excluded under the designation of temporary part-
time employees in the 1976 stipulated election
agreement. Smith stated, "I'll accept the same unit
as last time." Lynch then read Smith the 1976 unit
description, which expressly excluded temporary
part-time employees, and Smith agreed that it was
acceptable. Thereafter, a stipulation was prepared
which was signed by both Smith and Lynch and
which set forth a unit description identical to that
contained in the parties' 1976 stipulation.
On February 14, 1980, the Employer submitted
the voting eligibility list, on which it listed no em-
ployees in its temporary part-time classification.
The Petitioner raised no objection to the list. On
February 28, however, Smith telephoned Lynch
and stated that a number of temporary part-time
employees had told him that they had worked for
the Employer for a year or more and that they felt
they were entitled to vote. Lynch expressed sur-
prise that any employee had been in the temporary
part-time classification for so long.
At the election, 40 of the 113 employees classi-
fied by the Employer as temporary part-time em-
ployees attempted to vote. Their ballots were chal-
lenged by the Board agent since their names did
not appear on the eligibility list.
At the hearing, the Petitioner contended 4 that
the challenged voters were "regular part-time" em-
ployees within the Board's definition of that term
and must, under Board policy, be included in the
unit. The Petitioner further argued that when the
stipulation was entered into, neither party had an
accurate understanding of the regularity with
which employees actually worked while in the
temporary part-time classification. The Employer
argued that the stipulation, in expressly excluding
4 The Petitioner did not present any evidence at the hearing.
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the temporary part-time classification,
reflected a meeting of the minds between the par-
ties and that the stipulation should be given effect
by the Board.
The Hearing Officer concluded that it was un-
necessary to determine the parties' intent with re-
spect to the disputed employees. In this regard,
based on his findings that the temporary part-time
employees shared a community of interest with em-
ployees included in the unit and that they were
regular part-time employees, he concluded that the
exclusion of the temporary part-time classification
from the unit was contrary to Board policy. He
therefore further concluded that regardless of the
parties' intent their stipulation excluding temporary
part-time employees could not be given effect. We
disagree.
It is well established that, "In stipulated unit
cases, the Board's function is to ascertain the par-
ties' intent with regard to the disputed employee
and then to determine whether such intent is incon-
sistent with any statutory provision or established
Board policy." 5 This analysis is a narrow one, not
intended to afford de novo review of the unit, since:
a stipulated inclusion or exclusion which
may not coincide with a determination which
the Board would make in a nonstipulated-unit
case on a "community of interest" basis is not
a violation of Board policy such as would jus-
tify overriding the stipulation. 6
In the instant case the parties entered into a stip-
ulation which expressly excluded employees in the
Employer's temporary part-time classification. Ap-
plying the above-cited principles, we find, contrary
to the Hearing Officer, that it is necessary to deter-
mine the intent of the parties as reflected in the
stipulation. At the hearing, the Petitioner argued
that the term "temporary part-time employees" in
the stipulation was intended to exclude not employ-
ees within a particular job classification of the Em-
ployer, but rather "temporary employees" as de-
fined by the Board. The Employer's uncontradict-
ed evidence with respect to the 1976 preelection
discussions between the parties makes it clear,
however, that the parties' stipulation utilized the
term "temporary part-time employees" as the Em-
ployer's existing terminology for one of its job clas-
sifications and that the parties excluded the classifi-
cation from the stipulated unit without reference
to, or discussion of, whether the employees in that
classification were eligible to vote under Board
standards. Also, as noted above, it is undisputed
that in 1976 no employees classified as temporary
part-time by the Employer were on the voter eligi-
5 The Tribune Company, 190 NLRB 398 (1971).
B White Cloud Products. Inc., 214 NLRB 516, 517 (1974).
bility list, and no objection to the list was raised. It
is further undisputed that no employee classified as
temporary part-time by the Employer voted or at-
tempted to vote in the 1976 election.
Furthermore, it does not appear that between the
1976 and 1980 elections there were substantial
changes in the employment status of employees in
the temporary part-time classification. Indeed, in
their 1980 preelection discussions, the parties ex-
plicitly agreed to utilize the same unit description
in the 1980 stipulation as had been set forth in the
1976 stipulation. Finally, although on February 28,
1980, Smith expressed his concern to Lynch that
certain "long term" employees had been informed
that they were ineligible to vote, he did not then,
or at any other time, state that the eligibility list
was contrary to the parties' agreement. In these
circumstances, we find that the parties in fact had
reached a meeting of the minds, that they had
agreed to exclude employees in the Employer's
temporary part-time classification, and that the
1980 stipulation reflects the clear intent of the par-
ties.
Having determined that the parties intended to
exclude employees in the Employer's temporary
part-time classification, we now turn to a consider-
ation of whether the stipulated unit excluding that
classification violates Board policy. We find that it
does not. Thus, even assuming arguendo, as the Pe-
titioner contended and the Hearing Officer found,
that the employment history of the disputed em-
ployees brings them within the Board's definition
of "regular part-time employees," the parties'
agreement to exclude such employees would not
contravene Board policy. 7 Accordingly, we find
that the parties' stipulation must be given effect.
Therefore, and since the 16 challenged voters in
issue are in a classification excluded from the stipu-
lated unit, we shall sustain the challenges to their
ballots. Finally, because the remaining ballots, the
challenges to which have been overruled, are no
longer determinative of the results of the election
and the Petitioner has failed to receive a majority
of the valid ballots cast, we shall certify the results
of the election.
7 See, e.g., Bachman Uxbridge Worsted Corporation (Uxbridge Mill), 109
NLRB 868, fn. 9 (1954). The Hearing Officer, in finding that the exclu-
sion of regular part-time employees would be contrary to Board policy
relied on, inter alia. Sears. Roebuck and Co., 172 NLRB 1266 (1968);
Sears. Roebuck and Co., 191 NLRB 398 (1971); Purity Supreme. Inc., 197
NLRB 915 (1972); and United States Steel Corporation, 192 NLRB 58
(1971). These cases however, involved contested units rather than, as
here, a stipulated unit.
We find that Illinois Valley Community Hospital. 249 NLRB 410 (1980),
relied on by the Hearing Officer, is inapposite There the Board declined
to give effect to the parties' agreement which, unlike here, would have
resulted in prima facie members of the bargaining unit, who admittedly
were in a classification included in the unit, being ineligible.
162
TIFFIN ENTERPRISE, INC.
ORDER
It is hereby ordered that the challenges to the
ballots of Steven Moomaw, Joean Hayman, Ronald
Gowan, Cassandra Breighner, Ann Van Buskirk,
Shirley Woodard, Elaine Kimmet, Mark Runion,
Daryl Allgyre, Anthony Cardwell, Peter Seigle,
Jim Clayburn, Betsy Shaw, Corrine Gillum, Fannie
Buskirk, and Denise Lynch, and that the challenges
to the ballots of Brenda Yoder, Laurel Twardzik,
Susan Beidelschies, Ester Liebengood, Karen
Knaup, Doug Reinhard, Sandra Biller, Theresa
Distel, Marie Drown, Sheryl Krager, Rhonda
Gray, Amy Mattson, Jean Snell, Donna Cox,
Laurie Gillig, and Janet Reiter be, and they hereby
are, sustained.
IT IS IURTHIER ORDERI. D that the challenges to
the ballots of Carol Dentinger, Rose Mangus, Mar-
jorie Shaw, Marsha Biller, Bonita Stahlsworth,
Daisey Kirian, Curtis Lloyd, and Michael
McGown be overruled, but that such ballots not be
opened and counted.
CERTIFICATION OF RESULTS
It is hereby certified that a majority of the valid
ballots have not been cast for International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, and that
said labor organization is not the exclusive repre-
sentative of all the employees in the unit herein in-
volved within the meaning of Section 9 (a) of the
National Labor Relations Act, as amended.
163