Hamilton Test Systems, New York, Inc. v. N.L.R.B., s. 1365
| Decision Date | 30 August 1984 |
| Docket Number | Nos. 1365,D,1522,s. 1365 |
| Citation | 743 F.2d 136 |
| Parties | 117 L.R.R.M. (BNA) 2248, 102 Lab.Cas. P 11,221 HAMILTON TEST SYSTEMS, NEW YORK, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Local 804, Delivery and Warehouse Employees, An Affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor. ockets 84-4044, 84-4056. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward J. Dempsey, Hartford, Conn. (Joseph C. Wells, Farmer, Wells, Sibal & Dempsey, Hartford, Conn., of counsel), for petitioner Hamilton Test Systems, New York, Inc.
Ralph C. Simpson, N.L.R.B., Washington, D.C. (Wilford W. Johansen, Acting Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, William Wachter, N.L.R.B., Washington, D.C., of counsel), for respondent N.L.R.B.
Richard M. Seltzer, New York City (Cohen, Weiss & Simon, New York City, of counsel), for intervenor Local 804, Delivery and Warehouse Employees.
Before MESKILL, CARDAMONE, and ROSENN, * Circuit Judges.
Hamilton Test Systems, New York, Inc. (Company) petitions for review of a decision and order of the National Labor Relations Board (Board) holding that the Company committed an unfair labor practice by refusing to bargain with Local 804, Delivery and Warehouse Employees (Union). The Board cross-petitions for enforcement. The Company contends that its refusal to bargain was justified because the Board certified an inappropriate bargaining unit and because the Regional Director conducted the representation election pursuant to an official notice that incorrectly defined the bargaining unit. We see no error in the Board's unit determination. We grant the Company's petition for review, however, because the Board's election procedures effectively denied the employees in these proceedings an opportunity to vote for representation in the unit certified by the Board.
Hamilton Test Systems, New York, Inc. services computerized automobile emission test machines under a contract with the State of New York. The Company's operations are divided between its headquarters in Hauppauge, New York, and three district offices. 1 Each of the facilities employs field service representatives and customer service supervisors, in addition to clerical workers, business employees, and supervisors. The headquarters also employs technicians, crib attendants, and a truck driver. 2
Fourteen field service representatives work out of each of the branch offices and fifteen out of the Hauppauge headquarters. The field service representatives visit the automobile inspection stations and perform preventive maintenance checkups on the Company's equipment. They also make minor repairs with spare parts that they carry with them. Defective parts are returned to the local district office for delivery to Hauppauge where the technicians make in-shop repairs to them. The field service representatives carry beepers to enable them to respond to emergency customer calls for repair assistance, and they are provided with company automobiles. They may also use the automobiles for personal purposes at the rate of ten cents per mile. They report to their respective offices only once a week to turn in their records, exchange parts, and meet with other representatives.
Each of the facilities also has two customer service supervisors. 3 These employees receive calls for repairs and dispatch field service representatives to attend to customer problems. The customer service supervisors also replace defective parts that the field service representatives bring in from their equipment inspections. The customer service supervisors work out of their own crib of parts, which is restocked by the Company's truck driver.
The technicians'job is to repair the defective emissions machine parts brought in by the field service representatives. The technicians work in the Hauppauge facility in an open area across from the crib attendants. The technicians receive the defective parts from the crib attendants and return them when the repairs are completed. Unlike field service representatives with whom they have little or no contact, the technicians are not required to have experience in the automotive industry.
The crib attendants are responsible for handling and issuing parts, keeping a record of them, and maintaining the main parts crib at the Hauppauge facility. The main parts crib is adjacent to the technician's workplace and is separated from the customer service supervisors' crib by a wire cage.
The truck driver delivers new and repaired parts to the district offices and picks up defective parts at these offices for repair at Hauppauge. The truck driver also occasionally delivers whole machines directly to customers. The truck driver reports for work to the Hauppauge headquarters in the morning and checks out there in the evening.
On January 20, 1982, Local 804, Delivery and Warehouse Employees filed a petition with the National Labor Relations Board seeking certification as a bargaining representative. The Regional Director decided on May 28 that the appropriate unit for bargaining would consist of the five groups of non-clerical employees at the Hauppauge facility. See supra, note 2. 4 The Company sought Board review of the Regional Director's decision, maintaining that the appropriate bargaining unit consisted of the service and repair employees at all four facilities. The Union also requested review contending that the appropriate bargaining unit comprised the technicians, crib attendants, and the truck driver at the Hauppauge facility, but not the field representatives or the customer service supervisors. An election was set for June 25, 1982. On June 24, the Board telephoned the Regional Director and informed him that it was denying the Company's request for review of his designation of the bargaining unit and granting the Union's request. The parties were advised of this action later that afternoon. The Board confirmed its decision by mailgram the next day.
On June 25, the Regional Director conducted an election among the employees in the unit that he had initially designated. The ballots were impounded pending the Board's ultimate ruling on the scope of the bargaining unit. On December 2, the Board issued its decision rejecting the Regional Director's unit determination and establishing the smaller group requested by the Union as the bargaining unit. The ballots cast by the smaller unit were counted. Six voted in favor of and four voted against union representation.
On December 17, the Company filed objections to the conduct of the election. The Regional Director overruled the objections in their entirety. To obtain review, the Company refused to bargain with the Union. The Union thereupon filed an unfair labor practice charge and the Regional Director issued a complaint based on the charge. The Company answered by denying the appropriateness of the unit and the validity of the Board's certification of the Union. The Board granted the General Counsel's request for summary judgment. The Company then petitioned this court for review of the Board's decision and order, and the Board cross-applied for enforcement.
The Company contends that the Board erred in rejecting the Regional Director's unit determination and establishing the smaller bargaining unit. The Company urges that the Board's determination be overturned because the Company operates an integrated, technical enterprise that should not be carved up by piecemeal unionization. It stresses that field representatives and technicians receive virtually the same wages, require similar expertise, and receive a one-week training program. Further, during one crunch period, field representatives were called in to assist the technicians. The Company also argues that the truck driver is on the road as much as any field representative. It cites the Regional Director's findings that the field service representatives and technicians perform substantially the same type of work and utilize the same skills and training: "The field service representatives and [customer] service supervisors to the Hauppauge facility share a community of interest with the technicians, crib attendants, and truck-drivers and should be included in the same unit."
The Board, however, reached its unit determination after comparing wages, supervision, training, advancement possibilities, and employee interaction. Thus, the Board examined appropriate factors in making its decision. See NLRB v. Bay Shipbuilding Corp., 721 F.2d 187, 190-91 (7th Cir.1983). The Board found that the community of interest between the field service representatives and the customer service supervisors contrasted with the community of interest of the technicians, crib attendants, and truck driver:
In contrast, the field service representatives spend only 3 hours per week at the Employer's facility, and the customer service supervisors are located in an enclosed office separate from the other employees. In addition, the field service representatives and the customer service supervisors are separately supervised, have no interchange with the other employees, and have a separate promotional ladder. Moreover, the customer service supervisors receive significantly higher wages than other employees, and the field service representatives alone receive the benefit of a company car. Further, there are different job qualifications for field service representatives than for technicians, and the field service representatives service whole machines rather than repair individual parts, thereby making it necessary for them to receive separate training from the technicians after the initial training session.
Hamilton Test Systems, New York, Inc., 265 N.L.R.B. 595, 596 (1982).
The Company does not challenge the accuracy of the Board's factual findings. As noted...
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