N.L.R.B. v. Clark Distributing Co., Inc., 90-5086
| Citation | 917 F.2d 24 |
| Decision Date | 24 October 1990 |
| Docket Number | No. 90-5086,90-5086 |
| Parties | 135 L.R.R.M. (BNA) 2872 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CLARK DISTRIBUTING COMPANY, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before BOYCE F. MARTIN, Jr., RYAN and SUHRHEINRICH, Circuit Judges.
The National Labor Relations Board seeks enforcement of its order finding respondent Clark Distributing Company, Inc. in violation of sections 8(a)(5) and (1) of the National Labor Relations Act of 1947, 29 U.S.C. Secs. 158(a)(5) and (1) by refusing to bargain with the Chauffeurs, Teamsters Helpers Local Union No. 236, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO as the exclusive bargaining representative of certain employees of Clark. The Board, at 295 N.L.R.B. No. 130 (1990), granted the General Counsel's motion for summary judgment finding that Clark had not raised any representation issues that were properly litigated in an unfair labor practice proceeding. Clark contends that its refusal to bargain is justified because the Board abused its discretion when it failed to resolve the unit status of two Clark employees prior to the representation election.
Clark Distributing Company, Inc. is engaged in the wholesale distribution of beer from its Paducah, Kentucky facility. In January 1989, the Union filed a petition to represent Clark's employees at the Paducah facility in a unit of all drivers-salesman, truck drivers warehousemen, helper and pre-salesman drivers. An issue arose as to the inclusion of employees in the job classification of "brewery brand manager" in the bargaining unit. The "brewery brand manager" job classification was adopted by Clark in early 1983 in response to a demand by Miller Brewing Company that Clark designate an employee to serve as the "clearinghouse" for information regarding the promotion and sale of its brands. The Union took the position that the two brewery brand managers, (William T. "Tom" Stewart Jr. and Andrew W. "Drew" Lynch) were supervisors and thus ineligible to be in the bargaining unit whereas Clark believed that this classification should be included in the unit. A hearing was held on the issue and the Regional Director concluded that brewery brand managers Stewart and Lynch were statutory supervisors under section 2(11) of the Act, 29 U.S.C. Sec. 152(11), and were excluded from the bargaining unit. He further directed that an election be conducted on February 24, 1989 in a unit of approximately twelve employees. On February 8, 1989, Clark sought review of the Regional Director's decision to exclude the brewery brand managers from the bargaining unit. On February 24, 1989, the Board issued an order in which it found that the request for review raised a substantial issue with respect to supervisory status of the two brewery brand managers, but concluded that the issue could best be resolved through the challenge ballot procedure and denied the request. The order further directed that Stewart and Lynch be permitted to vote.
The election was held on February 24, 1989, as scheduled. The tally of ballots indicated that eight votes were cast for the Union, three votes were cast against the Union, and two votes were challenged, those of Stewart and Lynch. On March 3, 1989, Clark filed a timely objection to the conduct of the election based upon the failure of the Board to determine the supervisory status of the brewery brand managers prior to the election. On March 7, 1989 the Regional Director overruled Clark's election objection and certified the results of the February 24 election. Clark then sought review of this decision by the Board. The Board denied review in an order dated May 31, 1989.
On March 23, 1989, the Union filed an unfair labor practice against Clark charging that Clark had violated sections 8(a)(5) and (1) of the Act by its refusal to bargain with the Union. The Regional Director issued a complaint six days later. In its answer, Clark admitted its refusal to bargain but asserted that the Board's failure to resolve the unit status of Stewart and Lynch prejudicially and improperly impaired the conduct of the election and deprived the brewery brand managers important rights secured to them by the Act. Thereafter, the Board granted the General Counsel's motion for summary judgment. A decision and order was issued on July 31, 1989, finding that Clark violated sections 8(a)(5) and (1) of the Act by refusing to bargain with the union. The Board ordered Clark to cease and desist from any unfair labor practices that interfere...
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