Sutherland Paper Co.

,In the Matter of SUTHERLAND PAPER COMPANY and LOCAL UNION No. 7, BROTHERHOOD OF TEAMSTERS , ETC., A. F. OF L. Case No. 7-R-1605.=Decided February 24, 1944 `Mr. Charles H. Farrell, of Kalamazoo,' Mich., for ;the Company. Mr. Roland L. Huff, of Kalamazoo, Mich., for the Teamsters. Mr. Henry Ford ,Jr., of Kalamazoo, Mich., for the Independent. Mr. Armin Uhler, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a-petition duly filed by International Brotherhood of Team- sters, Chauffeurs, Warehousemen, and Helpers, A. F. of L.,' Local Union No. 7,1 herein called the Teamsters, alleging that a question affecting commerce had arisen concerning the representation of employees of Sutherland Paper Company, Kalamazoo, Michigan, herein called the Company, the National Labor Relations Board provided for an ap- propriate hearing upon due notice before Frederick P. Mett, Trial Examiner. Said hearing was held at, Kalamazoo, Michigan, on De- cember 13, 1943. The Company, the Teamsters, and Independent. Union of Sutherland Paper Company Employees, Inc., herein called the Independent, appeared and participated. All parties were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free-from prejudicial error and are hereby affirmed. The Company, the Teamsters and the In- dependent filed briefs which the Board has considered.- Upon the entire record in the case, the Board makes the following : 1 The name of the union as indicated on the petition and as distinguished from that used in the caption herein is presumed to be correct and will herein be used whenever necessary. 55 N. L. R. B., No. 6 38 SUTHERLAND PAPER COMPANY 39) FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Sutherland Paper Company is a Michigan corporation with its prin-- cipal office and two plants at Kalamazoo, Michigan, where it is en-- gaged in processing paper box board and manufacturing paper car- tons and paper specialties. The Company employs approximately- 2,200 employees. - During the 6-month period ending November 16,1943, the Company- purchased raw materials valued at approximately 3 million dollars,- approximately 90 percent of which was shipped to its plants from out- side the State of Michigan. During the same period the Company's- total sales amounted to approximately 7 million dollars, including- shipments to destinations outside the State of Michigan valued at approximately 6 million dollars. The Company admits that it is engaged in commerce within the- meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehouse- men, and Helpers, Local Union No. 7, affiliated with the American Federation of Labor, and Independent Union of Sutherland Paper Company Employees, Inc., unaffiliated, are labor organizations admit- ting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about September 25, 1943, the Teamsters requested recogni- tion from the Company as the exclusive representative of its truck- drivers. The Company refused so to recognize the Teamsters because- of the existence of a contract with the Independent covering the em- ployees in the alleged unit. The Independent has joined in the Com- pany's contention that said contract is a bar to the present proceeding. The record discloses that in June 1938, the Company and, the Inde- pendent' entered into a collective agreement covering all except office and supervisory employees. Similar 1-year contracts were executed by the parties on the first days of July 1939, 1940, and 1941. The con- tract upon which the Company and the Independent rely in opposing a present investigation to ascertain representatives was entered into on July 1, 1942, but, unlike its predecessors, it provides for a 2-year term and does not expire until June 30, 1944. Since this contract is for a longer term than 1 year and has already been in effect for more than 19 months, it does not constitute a bar to a present determination of representatives.2 2 See Matter or Los Angeles Shipbuilding and Drydock Company, 40 N. L. R. B. 1150; Matter of Kahn & Feldman, Inc., 30 N. L R . B 294, and cases cited there. 40 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD A statement of the Acting'Regional Director, introduced into evi- dence at the hearing, indicates that the Teamsters represents a sub- stantial number, of employees in the unit hereinafter found appro- priate.3 We find that a question affecting cominerce has arisen concerning the -representation of employees of the Company, within the meaning, of Section (9) c and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Teamsters contends that a separate unit composed of dri'vers who operate the Company's motor trucks, both over the highways between Kalamazoo and other cities, 4' and locally betwveeli the Coln- 'pany's plants, railroad terminals, customers and suppliers,-5 is appro- priate. The Company and the Independent, on the other hand, insist that such a unit is inappropriate and that the plant-wide unit estab- lished'by past bargaining history should not be disturbed. The record shows that since 1938 the Company has maintained con- tractural relations with the Independent; covering "all persons em- ployed by the [Company] in any and all departments thereof, with the'exception of the [Company's] officers, executives, managers super- intendents, assistant superintendents, foremen' or forewomen, and office employees." 7 Each, of the five contracts successively entered into between June 1938 and- July 1942 s contains schedules of wages and other terms of employment applicable to employees in the several departments and classifications. While the first three of these agree- ments make no specific mention of truck drivers, the agreements of July 1, 1941 and 1942, set out their rate of compensation together 'with that of other employees listed tinder "Dispatch" in the Company's Standard Carton Division. According to the record, the Independent, since its inception, has represented the drivers in negotiating contracts with the Company as well as in the matter of individual grievances. 7 The Acting Regional Director reported that the Teamsters submitted 17 application for membership cards all of which bore apparently genuine original signatures ; that the names of 16 persons appearing on the' cards were listed on the Company's pay roll of November 16, 1943, which contained the names of 22 employees in the appropriate unit; and that 16 cards \Nere dated between October 1 and 8, 1943, 1 card being undated. 4111his group is'known•as "over the ioad" drivers and drives chiefly between Kalamazoo and- Chicago. g - These employees are referred to in the record as local cartage drivers b'upra, Section III. The contracts introduced in'evidence refer to an earlier agreement between the parties entered into October 2, 1937. 7 The contract last, entered into by the parties on, July 1, 1942, also excludes'salaried watchmen from the unit. s The parties on March 6 and July 12, 1943, respectively, exeeuted'agreeinents supble- mental to the contract of July 1, 1942, neither'of which is'of'importance to the'issues'here Involved. .SUTHERLAND PAPER COAIPANI 41 Thus, it appears that the drivers have been submerged in the industrial unit which, since 1938, has prevailed at the Company's plant. On the other hand, truck drivers belong to a clearly defined and historical craft ° and their interests are identified with the business of transportation rather than with the particular industry which they serve.10 Drivers are solely concerned with and responsible for -the operation and safety of their vehicles and of the goods entrusted to them for transit and delivery. In carrying out their peculiar duties, they are subject to Federal and State legislation and regulatory provisions which do not affect other employeesl1 While the services of the drivers in transporting and delivering materials and manu- factured products to and from the plant are essential to the Com- pany's business, the functions of the drivers are not integrated with those of production employees.12 The Company's drivers are thus well identified as a separate and homogeneous group with distinct functions and interests. Indeed, these employees are under the sepa- rate supervision of the Fleet Superintendent lj and .they hold regular monthly safety meetings in which their special problems are discussed with the superintendent. Finally, the Company's drivers have been organized' by the Teamsters which has made a substantial showing of membership among them (supra,'Section III).14 While we have often given weight to past bargaining history in determining the scope of employee -units , this factor is not of itself conclusive when, as here , the propriety of a craft unit has never been in issue 1S and there i4 a, manifest overbalance of considerations which militates-in favor of establishing a different unit. Under all the cir- cumstances , we find that the Company 's drivers, -excluding all super- visory employees with authority to hire, promote , discharge, discipline, or otherwise effect changes in the status of employees, or " See Matter of Fedeiat Telephone ,( Radio Corpordtion, 49 N L R B. 938. 11 Cf Matter of Jones ,E Laughlin Steel Corporation, 54 N L R B 679. 11 Di ivers engaged , in the transpoi tation of goods, whether employed by public, Conti act, or piivate carriers, because of the nature of their work and their special concern With highway safety , have been excluded from the operation of the Fair Labor Standaids,Act (52 Stat 1060 , Section-13 ), and subjected to regulation under the provisions of the Federal Motor Cariier Act (49 Stat 543, Section 204) Compare the similai exemption of transportation employees under the terms of the Public Contract Act (49 Stat 2036; Regulation 504, Article 102 ; Rules and Interpretations No 2) 12 It is unimportant in this connection that the Company's "over ' the road" drivers, whose regular horning hours haAe recently been reduced to 40 hours per week, are afforded an opportunity to peifoiui other duties in the plant so as to receive the benefit of overtime compensation This extra work is entirely voluntary and is-not a part - of-the driver's regular employment. 13 The Fleet Superintendent is in charge of a department known as the "Motor, Truck Division" which is composed of the drivers and auxiliary personnel. 14 Cf Matter of Brewster Aeronautical Corporation , 31 N. L. R B 776. 15 Cf. Matter of General Foods Corporation, Corn Mill Dti ision, 54 N. L. R. B 596; Matter of Westinghouse Electric ci Manufacturing Cotnpnay , 49 N. L . R B 445, and cases cited there. Matter of Tampa Florida Brewery, Inc, 42 N L. R . B. 642. -42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effectively recommend such action, constitute a unit appropriate for the,purposes of collective bargaining, within the meaning of Section `9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by ,an election by secret ballot among the em- -ployees in the appropriate unit 'who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the -Direction. t DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National -Labor Relations' Board by Section 9 (c) of the National Labor Rela- Ltions Act, and pursuant to Article III, Section '9, of National Labor Relations Board Rules and Regulations-Series 3, it is hereby DIRECTED that, as part of the investigation to-ascertain -representa- tives for the purposes of collective bargaining with Sutherland Paper -Company, Kalamazoo, Michigan, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the-Seventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among -the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding -the date of • this Direction, including employees who did not work -during said 'pay-roll period because they were ill or on vacation or -temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the -election, to determine whether they desire to be represented by Inter- ,-national Brotherhood of Teamsters, Warehousemen, and Helpers, 'Local Union No. 7, affiliated with the American Federation of Labor, or by Independent Union of Sutherland Paper, Company Employees, Inc.,'for the purposes of collective bargaining, or by neither.