Opposition Brief — New Berlin Grading Co. v. National Labor Relations Board

No. 91-1193

Iu the Supreme Court of the United

OCTOBER TERM, 1991

FRIO: ~

Pee — ili

NEW BERLIN GRADING Co., INC., ET AL., PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

JERRY M. HUNTER Washington, D.C. 20530

General Counsel (202) 514-2217

D. RANDALL FRYE

Acting Deputy General Counsel -

_ NORTON J.COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

ROBERT N. HERMAN

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether the National Labor Relations Board acted

within its discretion in directing a single election in

a unit including operators and mechanics, rather

than permitting the mechanics to vote separately con-

cerning union representation.

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction .._... Sean EI eile i idiebanachahdencatiennetnsstevcusasneccassnnuesn 2

Statement... RE Ala hss dhacuncnocaaiemncenniiies 2

Argument 2 boa gE A RE OAD ONE RIO 7

Conclusion ee adn ree me 11

IIIT, titties osaicwnspaosanne cen sipalaipenbininisn idcdilaseidaasin cuaptanetssiiselsiimasis la

TABLE OF AUTHORITIES

Cases:

Chrysler Corp., 173 N.L.R.B. 1046 (1968) 9

D.V. Displays Corp., 134 N.L.R.B. 568 (1961) . 4,7

Del-Mont Construction Co., 150 N.L.R.B. 85

(1964) ieee 8

Dick Keichner Ex cavating Co., 236 NLR. B. 1414

es ateatispnaitecinn 8

Duke Power Co., 173 N.L.R.B. 240 (1968) . 1,9

Emporium Capwell Co. v. Western Addition Com-

munity Org., 420 U.S. 50 (1975) —........ SHadee 1]

Fort Worth Stockyards, 109 N.L.R. B. 1492

(1954) eae : 10

Globe Machine & Stamping Co., 3 N.L.R.B. 294

(1937) ere 10

John Deklewa & Sons, 282 N. L. R. B. 1375 (1987),

enforced sub nom. International Ass’n of Bridge

Wo. vers, Local 3 v. NLRB, 843 F.2d 770 (3d

Cir.), cert. denied, 488 U.S. 889 (1988) ... | 3

Krambo Food Stores, Inc., 119 N.L.R.B. 369

(1957) 10

Lubbock Typographical Union, No. 888,. 196

N.L.R.B. 177 (1972) 9

NLRB v. American Printers & Lithographers, 820

F.2d 878 (7th Cir. 1987) .... 9

NLRB vy. Southern Indiana Gas & Rlectyée Co.,

853 F.2d 580 (7th Cir. 1988), cert. denied, 488

U.S. 1031 (1989) 9

NLRB v. Weyerhaeuser Co., 276 F.2d 865 (7th

Cir. 1960) meee 10

(III)

re

IV

Cases—Continued:

New Enterprise Stone & Lime Co., 172 N.L.R.B.

UIE MMII so: cick hcapeautarassnsesabiossiueidessotslensentoaeden

Packard Motor Car Co. V. NLRB, 330 U.S. 485

I ooo ooacnics evignenacsenteadeesonssasepetsaneressemsertaaanion

Pittsburgh Plate Glass Co. V. NLRB, 313 U. S. 146

(1941) Pare

Rostone Corp., 196 N.L.R.B. 467 (1972)

School Board of Polk County v. Florida PERC,

399 So. 2d 520 (Fla. Dist. Ct. App. 1981)

Syracuse University, 204 N.L.R.B. 641 (1973)

The Zia Co., 108 N.L.R.B. 1134 (1954) ......

Statutes:

National Labor Relations Act, 29 U.S.C. 151 et

seq.:

§ 8(a) (1), 29 U.S.C. 158 (a) (1) ..

§$ 8(a) (5), 29 U.S.C. 158 (a) (5)

6 Sit), 23 U.S.C. 16807) ....:.........--.

§ 9, 29 U.S.C. 159 .. pa ee

& 9(b), 29 U.S.C. 159(b) .....

§ 9(b) (2), 29 U.S.C. 159 (b) (2) .....

§ 9(c) (1), 29 U.S.C. 159(c) (1) ......

Page

Iu the Supreme Cunt of the United States

OCTOBER TERM, 1991

No. 91-1193

NEW BERLIN GRADING Co., INC., ET AL., PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A9-

A21) is reported at 946 F.2d 527. The Board’s Deci-

sion and Order in New Berlin Grading Co. (Pet.

App. A32-A39) is reported at 297 N.L.R.B. No. 127.

The Board’s Decision in the underlying representa-

tion proceeding in New Berlin Grading (Pet. App.

A22-A31) is unreported. The following cases were

consolidated for review insthe court of appeals with

New Berlin Grading: Sunny Slope Grading Co., 298

N.L.R.B. No. 24 (Apr. 11, 1990): Schneider Exca-

(1)

2

vating, Inc., 298 N.L.R.B. No 57 (May 7, 1990);

Stoehr Grading Co., 299 N.L.R.B. No. 2 (July 13,

1990).

JURISDICTION

The judgment of the court of appeals was entered

on October 22, 1991. The petition for a writ of cer-

tiorari was filed on January 21, 1992. The jurisdic-

tion of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. The petitioners, four separate construction

companies, are engaged in excavating and grading at

construction projects throughout Wisconsin. Pet.

App. A33-A34. Petitioners employ heavy equipment

operators and mechanics who maintain the equip-

ment. App., infra, la; Pet. App. A23-A25.' For

nearly 20 years, petitioners, as mcmbers of multi-

employer bargaining groups, voluntarily recognized

and negotiated successive prehire collective-bargain-

ing agreements with the International Union of

Operating Engineers, Local 139, AFL-CIO (the

Union), pursuant to Section 8(f) of the National

Labor Relations Act, 29 U.S.C. 158(f). The most

recent agreements between the parties expired on

1 The appendix to the petition does not include the Board’s

decision on review of the Regional Director’s Decision and

Direction of Election in New Berlin Grading. See App., infra,

la-4a, The petition also does not include the Board’s decisions

on directions of elections in the cases involving the other

three petitioners in its appendix. As the court of appeals noted

(Pet. App. All), while there are some factual differences

among the four cases consolidated for review in the court of

appeals, those differences do not bear on the issues here. Ac-

cordingly, unless noted, the statement here will pertain to the

Board’s findings in New Berlin.

3

May 31, 1990, and May 1, 1991. Pet. App. A25-A26.

While the collective agreements included the classifi-

cation of “mechanics,” in fact, the Union did not

represent the mechanics, nor were the terms of the

collective agreements applied to them. App., infra,

2a; Pet. App. A26-A27.

As a result of a change in the law affecting the

rights of the Union as a signatory to prehire agree-

ments under Section 8(f) of the Act, the Union de-

termined to seek certification, under Section 9 of the

Act, 29 U.S.C. 159, as the elected representative of

a unit of each petitioner’s heavy equipment operators

and mechanics. Pet. App. Al4, A22-A23.?

2. In directing an election among the operators

and mechanics at petitioner New Berlin, the first of

the instant cases to come before the Board, the Re-

2 Section 8(f) of the Act authorizes employers and unions

in the construction industry to enter into bargaining agree-

ments before an employee complement is hired and without

regard to the union’s majority status. In John Deklewa &

Sons, 282 N.L.R.B. 1875 (1987), enforced sub nom. Interna-

tional Ass’n of Bridge Workers, Local 3 vy. NLRB, 843 F.2d

770 (8d Cir.), cert. denied, 488 U.S. 889 (1988), the Board

reevaluated the relationship established by a Section 8( f)

agreement. Under prior law, if a union recognized under

Section 8(f) represented a majority of the employer’s unit

employees at some point during the term of the prehire agree-

ment, the agreement was “converted” to one under Section

9(a) of the Act, and the union was thereafter entitled to

a presumption of continuing representative status. See

Deklewa, 282 N.L.R.B. at 1378-1379. Under Deklewa, how-

ever, the conversion doctrine has been abolished and an em-

ployer is free to refuse continued recognition of the union

upon expiration of a collective agreement. A Section 8(f)

representative seeking the rights of a full-fledged majority

union must file a representation petition or otherwise follow

the certification process established under Section 9 of the

Act. Deklewa, 282 N.L.R.B. at 1377, 1385.

4

gional Director concluded that the operators and the

mechanics share a sufficient community of interest to

constitute an appropriate bargaining unit. Pet. App.

A26. However, the Regional Director also concluded

that the mechanics should be accorded a self-determi-

nation election to determine whether they wished to

be included in the unit, should the operators vote in

favor of representation. [bid.

On review, the Board agreed with the Regional Di-

rector that the operators and the mechanics consti-

tuted an appropriate unit. The Board noted “the

multiple work-related contacts, significant common

work locations, the high level of integration of opera-

tions, and the inclusion of the classification of me-

chanic in the existing coliective-bargaining agree-

ments.” App., infra, 2a-3a. The Board cited its deci-

sion in New Enterprise Stone d& Lime Co., 172

N.L.R.B. 2157, 2158 (1968), where it had held that

heavy equipment operators and mechanics constituted

a “distinct functional grouping of construction em-

ployees” and that placement of them in the same unit

accorded with its “policy of defining units along his-

torical, functional lines in the construction industry.”

However, the Board disagreed with the Regional

Director that the mechanics were entitled to a sepa-

rate self-determination election. Citing its decision

in D.V. Displays Corp., 134 N.L.R.B. 568, 571-572

(1961), the Board explained that ‘“[w]hen, as here,

there is a question of representation in the historical

unit and the incumbent union seeks to add a previ-

ously unrepresented fringe group whom no other

union is seeking to represent on a different basis, the

Board will direct only one election, including all em-

ployees in the unit found to be appropriate.” App.,

infra, 3a.

Accordingly, in New Berlin and the three subse-

quent cases, the Board directed single elections in

5

units comprised of operators and mechanics. App.,

infra, 3a. In each case, the Union won the ensuing

election and the Board certified the Union as the em-

ployees’ exclusive bargaining representative in the

petitioned-for unit. Pet. App. A34.

Petitioners refused to bargain with the Union fol-

lowing the Union’s certifications, contending that the

mechanics should have been given self-determination

elections before being placed in units with operators.

Petitioners did not, however, contest the Board’s find-

ings that units consisting of both operators and me-

chanics were appropriate for collective bargaining.

The General Counsel issued complaints alleging that

petitioners violated Section 8{a)(5) and (1) of the

Act, 29 U.S.C. 158(a) (5) and (1), by their refusals

to bargain. On motions for summary judgment, the

Board found that petitioners had committed the al-

leged violations and directed petitioners to bargain

with the Union on request. Pet. App. A34-A35.

3. The court of appeals affirmed the Board’s deci-

sions and enforced its orders. The court noted that

petitioners did not contest the Board’s finding that a

bargaining unit consisting of both operators and me-

chanics was appropriate and it rejected petitioners’

contention that the mechanics should have been ac-

corded a separate election. Pet. App. A15-A16, A21.

Observing that it is the Board’s policy, where there

is a question of representation raised concerning an

existing historical bargaining unit, to include in the

ensuing representation election a “previously unrepre-

sented fringe group whom no other union is seeking

to represent on a different basis” (id. at A19), the

court found that policy to have been reasonably ap-

plied to the circumstances of this case. Jd. at A18.*

* Section 9(b) of the Act, 29 U.S.C. 159(b), requires the

Board to determine whether the appropriate unit “shall be

ee

6

The court rejected petitioners’ argument that “no

real question of representation existed among the

operators because of their union membership and

longstanding coverage under the § 8(f) agreement.”

Pet. App. Al9. The court pointed out that “the opera-

tors had to be union members to keep their jobs. The

union’s support had never before been put to the test

in an actual election, and the Board did not have to

conclude that the operators’ support for the union

was a foregone conclusion.” /bid.

The court also rejected the argument that D.V.

Displays was distinguishable because there, unlike

here, ‘‘the exclusion of the fringe employees from the

historical union had been an accident.” Pet. App.

A20. The court stated that, since the operators and

mechanics constituted an appropriate unit, it was

“reasonable [for the Board] to conclude that as in

D.V. Displays a fringe defect existed—employees

properly included in the unit were not included—and

that a self-determination election would perpetuate

this defect.” Zbid. The court added that it is also

“reasonable to conclude that directing only one elec-

tion, rather than giving part of the unit what amounts

to veto power over whether to be included, is more

consistent with the Board’s statutory responsibility to

determine the appropriate unit.” /bid.'

the employer unit, craft unit, plant unit, or subdivision

thereof.”” It thereby gives “the Board a broad discretion to

determine appropriate units.” Packard Metor Car Co. V.

NLRB, 330 U.S. 485, 491 (1947).

‘On January 28, 1992, Justice Stevens denied petitioners’

application for a stay of mandate. On February 24, 1992, the

full Court denied petitioners’ renewed stay application.

7

ARGUMENT

The decision below is correct. It does not conflict

with any decision of this Court or of any other court

of appeals. Accordingly, further review by this Court

is not warranted.

1. Section 9(c)(1) of the Act, 29 U.S.C. 159

(c) (1), requires the Board, upon the filing of a peti-

tion, to hold a representation election if it determines

that “a question of representation exists.” Where

there is an existing bargaining unit, the Board gen-

erally will not add “fringe employees’”—those who

are appropriately included in the existing unit but

have not been previously represented—to the unit

without according those employees a self-determina-

tion election to ascertain whether they want to be in-

cluded in the unit. See The Zia Co., 108 N.L.R.B.

1134 (1954). However, in D.V. Displays Corp., 134

N.L.R.B. 568 (1961), the Board modified the policy

enunciated in Zia and held that it would hold only

one election among all the employees appropriately

included in the petitioned-for unit where “there is

a question of representation in the historical unit and

the incumbent union seeks to add a previously unrep-

resented fringe group whom no other union is seeking

to represent on a different basis.” Jd. at 571.5 The

Board noted that “if the unit placement of [the]

fringe group had been presented to the Board for de-

termination at the time the historical unit was es-

tablished, the Board would have included them.”

Ibid. The Board added that, once the unit placement

of the fringe employees was put in issue, it was

“more consistent” with its statutory mandate to de-

termine the appropriate unit “to correct that fringe

* Accord Duke Power Co., 173 N.L.R.B. 240, 241 (1968) ;

Rostone Corp., 196 N.L.R.B. 467, 468 (1972).

8

defect in the historical unit” than to perpetuate it

by allowing the fringe employees to opt out by means

of a separate election. Jbid.

In this case, the Board found that a unit of opera-

tors and mechanics was appropriate.’ The Board also

found that there was a question of representation

raised in the historical unit. Accordingly, the Board

applied its D.V. Displays policy. In upholding the

Board’s decision, the court of appeals concluded that

“Tt]he Board’s decision to apply the rule in D.V.

Displays and to deny a self-determination election

only among the mechanics was a reasonable exercise

of its statutory authority to conduct representation

elections.” Pet. App. A21.

2. In contending that the Board improperly ap-

plied the rule of D.V. Displays to this case, petition-

ers quarrel (Pet. 18-20) with the Board’s finding

that there was a question of representation among

the heavy equipment operators as well as among the

mechanics. Petitioners contend that, because they

had voluntarily recognized the Union on behalf of the

operators for numerous years and the operators were

union members, it cannot be said that there was any

question regarding their interest in representation by

the Union. However, as the court of appeals noted

(Pet. App. A12), the operators were required, by the

prehire agreements, to be union members to keep

® The Board has consistently found, based on the function-

ally integrated nature of their work, that a unit of heavy

equipment operators and mechanics is appropriate. See, e.g.,

Dick Kelchner Excavating Co., 236 N.L.R.B. 1414, 1415

(1978); New Enterprise Stone & Lime Co., 172 N.L.R.B.

2157, 2158 (i468) ; Del-Mont Construction Co., 150 N.L.R.B.

85, 87 (1964). While petitioners appear to question the

propriety of that finding here (Pet. 15-16 n.9, 21-23), they

did not raise the issue in their questions presented.

9

their jobs and had never had an opportunity to de-

cide for themselves whether they wanted to be repre-

sented by the Union. In those circumstances, the

Board reasonably concluded that the change in the

Union’s status occasioned by the Board’s Deklewa

decision created a question of representation in the

historical unit. See Duke Power, 173 N.L.R.B. at 240

(voluntarily recognized union entitled to election to

establish right to certification).

Petitioners’ additional contention (Pet. 21-23) that

the mechanics here are not comparable to the

“fringe” employees involved in D.V. Displays is also

mistaken. As the court of appeals noted (Pet. App.

A20), the operative consideration is that, just as in

D.V. Displays, absent the voluntary recognition of

the operators by petitioners, the Board would have

directed only one election among the operators and

the mechanics had it directed an election at all. Ac-

cordingly, just as in D.V. Displays, the mechanics’

exclusion from the bargaining unit ‘derives from his-

torical accident rather than from any real difference

in function or status.” 134 N.L.R.B. at 571.

3. The Seventh Circuit recognized (Pet. App.

A20-A21) that petitioner’s reliance on prior circuit

precedent was misplaced because no question of rep-

resentation was at issue in any of the cited cases.’

™See NLRB v. Southern Indiana Gas & Electric Co., 853

F.2d 580, 581-582 (7th Cir. 1988), cert. denied, 488 U.S. 1031

(1989) (Pet. 13 n.8); NLRB v. American Printers & Litho-

graphers, 820 F.2d 878 (7th Cir. 1987) (Pet. 13 n.8) ; Chrys-

ler Corp., 173 N.L.R.B. 1046 (1968) (Pet. 23); Lubbock

Typographical Union No. 888, 196 N.L.R.B. 177, 178 (1972)

(Pet. 23). The state case cited by petitioners (Pet. 14)—

School Board of Polk County v. Florida PERC, 399 So. 2d

520 (Fla. Dist. Ct. App. 1981)—also involved no question

of represenutation in the existing unit. In Syracuse Uni-

SESE Oe

10

Petitioners acknowledge the distinction (Pet. 13-14

n.8), but simply reiterate their claim, which was re-

jected by both the Board and the court of appeals,

that in this case as well no real question of represen-

tation existed among the operators.

Petitioners’ reliance (Pet. 11) on Globe Machine &

Stamping Co., 3 N.L.R.B. 294 (1937), is similarly

misplaced. In Globe, three unions sought to repre-

sent different unit configurations of an employer’s

workforce. Finding all the petitioned-for units appro-

priate (id. at 299), the Board concluded that the em-

ployees should have an opportunity to choose among

the petitioning unions in the various unit configura-

tions. Jd. at 300.*° As the Board explained, the rule

enunciated in D.V. Displays applies only where, as

here, no other union seeks to represent the fringe

group on a different basis.

Finally, petitioners err in contending (Pet. 10)

that under Section 9(b) of the Act, “employee de-

sire is to be the deciding factor in close cases” in

making unit determinations. Pittsburgh Plate Glass

Co. v. NLRB, 313 U.S. 146 (1941), which petition-

versity, 204 N.L.R.B. 641, 643-644 (1973) (Pet. 13 n.7), the

Board found that the law school faculty constituted an appro-

priate unit distinct from the university faculty, and accorded

it a self-determination election because of the differences be-

tween the “academic world” and the Board’s usual “industrial

model.” Krambo Food Stores, Inc., 119 N.L.R.B. 369, 373-374

(1957) (Pet. 13 n.7), involved whether two separate stores

should be added to an existing ten-store unit. Fort Worth

Stockyards, 109 N.L.R.B. 1492 (1954) (Pet. 13 n.7), was

decided prior to D.V. Displays.

8 NLRB v. Weyerhaeuser Co., 276 F.2d 865, 868-871 (7th

Cir. 1960) (Pet. 13), involved a petition by a union pursuant

to Section 9(b) (2) of the Act, 29 U.S.C. 159(b) (2), which

provides for craft severance elections, to sever a distinct craft

group from an overall industrial unit.

11

ers cite for that proposition, states only that “the

wishes of employees are a factor in a Board conclu-

sion upon a unit.” Jd. at 156. And see Emporium

Capwell Co. v. Western Addition Community Org,.,

420 U.S. 50, 62 (1975) (if majority of a unit chooses

union representation, the Act permits that choice to

be imposed upon the minority).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JERRY M. HUNTER

General Counsel

D. RANDALL FRYE

Acting Deputy General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

ROBERT N. HERMAN

Attorney

National Labor Relations Board

MARCH 1992

APPENDIX

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

Case 30-RC-4915

NEW BERLIN GRADING, INC., EMPLOYER

Employer

and

INTERNATIONAL UNION OF OPERATING ENGINEERS

LOcAL 139, AFL-CIO

Petitioner

DECISION ON REVIEW AND ORDER

Petitioner’s Request for Review of the Acting Re-

gional Director’s Decision and Direction of Election

is granted as it raises substantial issues solely with

regard to the propriety of the direction of two sepa-

rate elections among the Employer’s equipment oper-

ators and mechanics. In all other respects, the Re-

quest for Review is denied.

Having carefully reviewed the entire record, we

conclude that the petitioned-for unit of operators and

mechanics is an appropriate unit, and that a single

election among those unit employees is proper.

The Employer, which is engaged in the excavating

business, employs thirty-two equipment operators.

three mechanics, and one apprentice mechanic. The

(la)

2a

Petitioner seeks to represent a unit composed of both

the operators and mechanics/apprentice mechanic.

The Employer contends that the mechanics/appren-

tice mechanic lack a sufficient community of interest

to be included in the unit with the operators.

The Employer has voluntarily recognized the Pe-

titioner as the Section 8(f) bargaining representa-

tive of its operators for nearly twenty years. The

Employer is currently signatory to two multi-

employer collective-bargaining agreements with the

Petitioner which cover the operators. Although the

two agreements also include the classification of me-

chanic, the Employer has not paid contractual wages

and benefits to the mechanics, nor has the Petitioner

even initiated grievance proceedings on behalf of the

mechanics.

The Acting Regional Director found that the me-

chanics shared a sufficient community of interest

with the operators to justify a self-determination

election as to whether they wished to be accreted to

the recognized unit of operators. Accordingly, the

Acting Regional Director directed two separate elec-

tions among the two groups of employees. If both

groups voted in favor of representation by the Peti-

tioner, an overall unit would be certified. If either

of the groups voted against the Petitioner, appro-

priate certification would issue.

We agree with the Acting Regional Director that

the operators and mechanics share a sufficient com-

munity of interest to make the petitioned for unit

appropriate. In this regard, we note, as did the Act-

ing Regional Director, the multiple work-related con-

tacts, significant common work locations, the high

level of integration of operations, and the inclusion of

the classification of mechanic in the existing

3a

collective-bargaining agreements. While we recognize

that the two groups are separately supervised and

possess different skills, we find that the degree of

functional integration in this case, along with the

other factors listed above, warrant a finding that the

combined unit is an appropriate unit for bargaining.

See New Enterprise Stone and Lime Co., 172 NLRB

2157 (1968).

Given the appropriateness of the petitioned-for

unit, a single election in that unit should have been

directed. When, as here, there is a question of rep-

resentation in the historical unit and the incumbent

union seeks to add a previously unrepresented fringe

group whom no other union is seeking to represent on

a different basis, the Board will direct only one elec-

tion, including all employees in the unit found to be

appropriate. D.V. Displays Corp., 184 NLRB 568,

571 (1961). Contrary to the Acting Regional Di-

rector, the doctrine of accretion has no application to

the facts of this case.

The election as directed by the Acting Regional Di-

rector took place on June 22, 1989, with the mechan-

ics and apprentice mechanics voting under challenge.

The ballots have been impounded pending the disposi-

tion of the instant Request for Review. We find that

the unit herein found appropriate—that of operators

and mechanics—differs significantly from the unit

set forth in the Board’s Notice of Election—that of

separate units of operators and mechanics. Due to

this variance, we find that a new election should be

held. See Coplay Cement Co., 288 NLRB No. 21

(Mar. 16, 1988).

Accordingly, the election conducted on June 22,

1989 is vacated and the case is remanded to the Re-

gional Director for the purpose of conducting a new

4a

election pursuant to the Decision and Direction of

Election, as modified above, except that the payroll

eligibility period shall be that period ending imme-

diately before the date of this decision. The Em-

ployer shall furnish an updated Excelsior list within

seven days from the date of this decision.

JAMES M. STEPHENS, CHAIRMAN

MARY MILLER CRACRAFT, MEMBER

JOHN E. HIGGINS, JR., MEMBER

Dated, Washington, D.C., July 14, 1989.

WY ou. S. GOVERNMENT PRINTING OFFICE; 1992 312344 45379