On Application For Enforcement Of An Order Of The National Labor Relations Board.
Hunter, Garth, Circuit Judges, and Weber,*fn* District Judge.
1. Pursuant to section 10(e) of the National Labor Relations Act ("Act" or "NLRA"), 29 U.S.C. § 160(e) (1976), the National Labor Relations Board ("Board") has petitioned this court for enforcement of its order issued on September 30, 1981.*fn1 In its decision accompanying that order the Board held that the Cardox Division of the Chemetron Corporation ("Company") had violated sections 8(a) (1) and 8(a) (5) of the Act, 29 U.S.C. §§ 158(a) (1), (a) (5) (1976), by refusing to bargain with and by withdrawing exclusive recognition of Teamsters Union Local No. 115 ("Union" or "Local 115"). The Board failed, however, to determine under section 9(b) of the Act, 29 U.S.C. § 159(b) (1976), whether the bargaining unit identified by the parties was an appropriate unit for collective bargaining purposes. For that reason we will deny the Board's application for enforcement and will remand this action to the Board for further proceedings consistent with this opinion.
2. The Cardox Division of the Chemetron Corporation is engaged in the manufacture, sale, and distribution of carbon dioxide. The Company operates approximately fifty separate facilities located throughout the United States, including ten manufacturing plants and forty distribution depots. The present controversy arises within the Company's "Eastern Region" which covers the northeastern portion of the United States from the Virginia-North Carolina state line to the Canadian border.
3. The Company has four regional servicemen in the Eastern Region, each assigned to a designated field service area. These servicemen are Charles Pennington, whose service area includes Virginia, Maryland, and a small part of southern Pennsylvania; James Hurley, whose service area includes eastern Pennsylvania, southern New Jersey, and all of Delaware; Richard Gerber, whose service area includes Bridgeport and New Haven, Connecticut, and the metropolitan New York-Newark area; and Tom Shane, whose service area includes eastern upstate New York, Maine, central New Hampshire, Massachusetts, and a portion of Connecticut. The servicemen work from their homes, primarily answering customers' calls in their service areas. Their work assignments, however, are not limited to their particular assigned service areas, and they are frequently assigned to other areas on a temporary basis.
4. All four servicemen are paid on a salaried basis and have an identical package of fringe benefits. They are supervised solely by Bernard O'Reilly, the Company's Service Manager for the Eastern Region. He approves their weekly time sheets and expense accounts, authorizes overtime, schedules their vacations, and handles their grievances. Although the servicemen are responsible for installing and maintaining equipment at some of the Company's distribution depots, the depot managers have no authority to direct their hours or work schedule.
5. On June 19 and July 2, 1979, respectively, servicemen Pennington and Hurley signed cards authorizing the Union to represent them for the purposes of collective bargaining. On August 14 two Union representatives met with Dick Wyatt, the Company's Delaware City, Delaware depot manager. They presented him with a letter and recognition agreement and requested that the Company recognize and bargain with the Union as the collective bargaining representative of the field servicemen employed at the facility.*fn2 Wyatt read the letter, personally checked the authorization cards, and then signed the recognition agreement. The agreement was sent to John Manning, the Company's Director of Employee Relations, who, after making some minor modifications, executed the agreement on August 27, 1979. The unit recognized within the agreement consisted of "field servicemen not included in any other bargaining unit and excluding guards, office clerical and supervisors as defined in the Act, employed by the Employer at [its Delaware City, Delaware] facility." App. 263a-64a.
6. After some initial correspondence the parties held their first bargaining session on October 17, 1979, but failed to reach an agreement on a contract. A second meeting was later scheduled for December 5, 1979.
7. Sometime in November, Pennington informed O'Reilly that he no longer wanted to be represented by the Union. Pennington testified that he changed his mind because of a dispute with the union over whether he should work while another union, Teamsters Local 326, was out on strike. At about the same time Pennington began receiving his phone calls at the Company's Suffolk, Virginia depot instead of at Delaware City.*fn3 When O'Reilly informed Hurley of ...