Big Buck Lumber

BI(; B (K I. MBER Welsch Lumber and Supply, Inc. d/b/a Big Buck Lumber and General Chauffeurs, Sales Drivers and Helpers Union, ocal 179 affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, Petitioner. Case 13-RC 14751 April 2, 1979 DECISION ON REVIEW AND DIRECTION OF El.ECTION BY ChIAIRMAN FANNING AND MI 1IBE RS JENKINS ANI) TRUtESI)AI On June 21, 1978, the Regional Director for Re- gion 13 issued a Decision and Order in this proceed- ing in which he found that the petitioned-for unit. consisting of the Employer's yardmen and drivers. was inappropriate. since the petitioned-for employees did not possess a sufficiently distinct community of' interest from the Employer's other employees to war- rant their inclusion in a separate unit. Since the Re- gional Director fund that the Petitioner had not in- dicated a desire to proceed to an election in a broader unit, he dismissed the petition. Thereafter, in accord- ance with Section 102.67 of the National Labor Rela- tions Board's Rules and Regulations. Series 8, as amended, the Petitioner filed a timely request for re- view of the Regional Director's decision, contending that it was clearly erroneous and a departure from Board precedent. The Employer filed a brief in oppo- sition. On August 17, 1978, the National Labor Rela- tions Board, by telegraphic order, granted the Peti- tioners request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review, and makes the following findings. Petitioner seeks to represent a unit consisting solely of the drivers and yardmen at the Employer's build- ing supply center located in Mokena, Illinois.' It con- tends that the Regional Director's dismissal of the petition seeking such a unit is contrary to Board prec- edent. The Petitioner asserts that yardmen and driv- ers enjoy an identifiable community of interest, as evi- denced by their separate supervision and work duties and the minimal interchange or integration they ex- perience with other groups of the Employer's employ- ees. In essential agreement with the Regional Direc- ' In its request for review. Petitioner states that it "would proceed to an election in an) unit of warehouse emplosees that is determined to he appro- priate." tor, the Employer contends, in opposition to Petitioner, that, in addition to the ardmen and driv- ers. the appropriate unit must include the loaders, gate checkers, salesmen. inventory control employees. and cashiers employed at the Mokena tficility. The Employer argues that all these employees' job func- tions are interrelated, that all employees share corm- mon benefits and overall supervision, and that the requested unit is therefore inappropriate. The facts show that the Employer is engaged in the distribution and retail sale of home building materials at its Illinois location. Situated on a 10-acre site. the facility consists essentially of five buildings. The main sales and service building houses the general sales area, offices, lunchroom facilities, and dispatch room, in addition to a section where various inventor is maintained. On two sides of the main building are eight bay areas at which customers, with the assist- ance of certain employees, can load their vehicles with purchased items. T''he remaining four buildings house sundry building supplies, ranging from small hardware items to bulk construction materials. Ninety-five percent of the materials are received b, truck, although a railroad spur also services the tacil- ity and approximately 5 percent of all incoming mate- rials are received by rail. About 80 percent of' the supplies sold by the Employer are taken out by the customer, usually in his own vehicle, on a cash-and- carry basis. The remaining 20 percent of the materials are delivered directly to the customer's location, where, unless prior arrangements are made to the contrary, the driver receives payment for the deliv- ered items. General Manager Burr Manby has overall supervi- sion of' the Employer's entire operation and directly supervises the Employer's loaders, gate checkers, and salesmen. The assistant general manager. Bob Smith, runs the operation in Nlanby's absence. Either Smith or Manby is almost always present at the facility. Manby spends 40 percent of his time in his office and the remaining 60 percent either in the main store or in the warehouse area. Art Andreasen directly super- vises the yardmen and drivers and any other em- plovee who is temporarily assigned to loading or un- loading trucks or railcars. Andreasen reports directly to Manhby and Smith. The parties stipulated that these three individuals are supervisors within the meaning of the Act. The usual sales procedure is for customers to enter the Employer's main building and contact a salesper- son. The salesperson will assist the customer and pre- pare a sales check, which the customer will take to a cashier, who. upon receiving payment, issues the cus- tomer a receipt. Having paid tfr his merchandise, the customer will load the material into his vehicle with assistance from designated employees. Customers 241 NLRB No. 79 639 DECISIONS OF NATIONAL LABOR RELATIONS BOARD searching for specific items, as well as those engaged in general browsing, are not restricted to the main building and are permitted access to the yard area. The work performed by the Employer's threey vard- men can be classified as traditional warehouse work. 2 Yardmen use forklifts and unload incoming trucks and railcars: place received goods into stock: and pre- pare and load building materials for deliveries to cus- tomers. The current yardmen are full-time employees and are generally scheduled to work Monday through Friday, 8 a.m. to 4:30 p.m. Until shortly before the hearing conducted herein, yardmen normally worked until 5:30 p.m. Now only one yardman, Herb Craab, remain until the latter hour, and during that extra hour he primarily assists customers in loading their purchases. The wage scale for yardmen ranges from $4.75 to $6 per hour, depending on length of service. As previously noted, yardmen, as well as drivers, are supervised by Andreasen. The primary responsibility of the two full-time driv- ers is to make deliveries of purchased items directly to the customer's location. be it a private or commercial customer. The Employer estimates that during the summer months the drivers spend approximately 60 to 70 percent of their worktime making deliveries but that in the winter months that figure drops to about 20 percent. The remainder of the drivers' time is spent readying the requested material for delivery and as- sisting the yardmen in unloading incoming freight. The truckdrivers, like the yardmen, are scheduled to work Monday through Friday, 8 a.m. to 4:30 p.m. Yardman Herb Craab serves as a backup driver, as does another yardman, and Craab will handle any deliveries that must be made on Saturdays. One driver is currently paid at the rate of $5 per hour, while the other receives $6 per hour. The loaders' primary responsibility, which occupies at least 80 percent of their time, is to assist customers in loading their purchased articles into their vehicles. The remainder of their time is spent performing yard- work. On rare occasions, a loader will assist a driver when a delivery requires the presence of two individ- uals. At the time of the hearing, the Employer em- ployed eight loaders, only one of whom. Fred Schroeder, worked on a full-time basis. The remain- ing seven loaders are students who work approxi- mately 10 to 20 hours a week except during the sum- mer months, when they may increase their schedule to 40 hours a week. The seven part-time loaders work almost exclusively on the weekends, encompassing Friday evenings through Sunday afternoons. On Sat- urdays, when yardmen are not normally on duty (in accordance with their revised schedule), loaders may 2 nits of drivers, helpers. and warehousemen have long been considered appropriate. Ph:--a Provision Compani. 134 Nl.RB 910 (1961). be called on to unload trucks and prepare loads for delivery.) In order to insure that they are able to per- form in this capacity, loaders are trained to operate forklifts. While loaders have assisted in the unloading of railroad cars, it appears that they have done so only when the Employer is faced with a potential de- murrage penalty; i.e., a fine levied against the Em- ployer for failing to unload a car within 3 days of delivery. Part-time loaders are paid between $3 and $4 an hour,4 and as part-timers they are not eligible to participate in the Employer's insurance, bonus, and profit-sharing programs. There are II salesmen employed at the Mokena facility, 4 of whom serve as department heads.5 Sales- men spend approximately 60 to 80 percent of their time in actual selling (no other employees having these duties), and most of the remainder of their worktime is spent in loading activity; i.e., assisting customers placing materials in their vehicles. The rec- ord also indicates that on sporadic occasions sales- men will assist in unloading trucks. Each Tuesday morning salesmen attend new product meetings, which yardmen and drivers do not attend. The salary range for salesmen is $4.75 to $6 an hour. Inventory control clerk Lauffer spends 2 days a week performing inventory work. The remainder of his workweek, he engages in loading, selling, or gen- eral cleanup duties. Lauffer is paid $4.75 an hour. The two gate checkers are responsible for checking purchases as customers leave the Employer's prem- ises, presumably to guard against theft.6 The current gate checkers, who are regular part-time employees, are also Social Security annuitants, and they have in- dicated to the Employer that once they have earned the maximum income permitted under Social Secu- rity laws they will resign for the remainder of the year. The gate checkers are paid at the rate of $3.75 an hour. The Employer also employs three cashiers, two of whom work full time. Their job functions include col- lecting money from customers after a sale has been completed. Their hourly wage ranges from $3 to $4.90 an hour. All employees punch the same timeclock; are hourly paid: share common lunchroom and restroom facilities; and enjoy common fringe benefits except for the part-time employees, who do not participate 3 Schroeder. the only full-time loader, also performs this type of work after 4:30 p.m. on weekdays when neither yardmen nor the part-time loaders are on dut 3. ' Schroeder receives $4.75 an hour. ' Neither party has contended that these four employees are supervisors within the meaning of the Act. General Manager Manby testified that these employees serve in a secu- rity capacity While such testimony raises a question as to the potential eligibility of these employees, even in the unit the Employer claims to he appropriate. we find it unnecessary to pass on the question of their status as guards under the Act. in view of our decision infra. 640 BIG BUCK LUMBER in the profit-sharing and discretionary bonus plans and the comprehensive insurance program. As noted in the discussions of the individual job classifications, wage rates vary among the several employee groups. The record also indicates several instances where unit members have transferred to nonunit positions. Steve Zervos, currently a salesman, previously held a position as a part-time loader and for a period of 6 months served as a driver. Salesman Carl France was originally hired as a driver and was employed in that capacity for 3 to 4 years. However, as a result of a heart attack, France was transferred to a sales posi- tion and has served in that position for the past 6 or 7 years. Jack Knippel, a senior employee, hired initially to work in the yard, has been employed as a salesman for the past 6 or 7 years. Finding that the facts in the instant case indicate that there is no geographical separation of the ware- house area from the Employer's retail operation, that all employees share common supervision, and that there is substantial integration and interchange among all employees, the Regional Director con- cluded that the requested unit is inappropriate and. accordingly, dismissed the petition. Contrary to the Regional Director, we find from the foregoing that yardmen and drivers, the unit sought by the Peti- tioner, share an identifiable community of interest warranting their representation in a separate unit.7 The record reveals that these employees alone per- form a true warehousing function as their primary employment activity, while the remaining employees, sought to be included by the Employer, engage either in direct sales or activities that are ancillary thereto. While all employees have access to the Employers' entire facility, their respective job responsibilities, save for the yardmen, drivers, and loaders, appear to tie them for the majority of their worktime to the general sales area in the main building. The loaders' primary responsibility, the postpurchase handling of material as distinguished from the unloading and handling of incoming goods for late delivery, is an activity directly related to sales rather than to tradi- tional warehouse work. Furthermore, for the greater part of the year, the schedules of yardmen and drivers on the one hand and loaders on the other are such that the two groups of employees rarely, if ever, come into contact with one another.8 The Regional Director's assessment that all em- ployees share common supervision is somewhat mis- leading, since, as he himself sets out in his decision, We further note that while unit employees and those employees sought to be included by the Employer do not possess geographically separate work areas, their work responsibilities and locale are sufficiently distinct to support our conclusion herein. I See, e.g.. Sears Roebuck and Co, 235 NLRB 678 (1978), where the Board found a warehouse unit appropriate notwithstanding the fact that unit em- ployees work in one area of a warehouse in which nonunit employees are also located. the yardmen and drivers have separate immediate su- pervision. The authority that Foreman Andreasen ex- erts over the warehousing operation, which itself indi- cates a certain separateness of that activity, is further exemplified by the fact that when a loader is tempo- rarily assigned to assist in unloading he comes under Andreasen's immediate supervision. Thus, it is appar- ent that the Regional I)irector's reliance on the pres- ence of common supervision as a basis upon which to find the requested unit inappropriate is tenuous. We also disagree with the Regional Director that there is substantial interchange among all employees. The record reveals only three instances over the past several years where unit personnel have transferred into nonunit positions, in each case to selling. There is no indication on the record that any nonunit person- nel have reversed the process and transferred into unit slots. In view of the total employee complement, 35 or 36, the transfer of three individuals to sales po- sitions over a span of years is, in our opinion, insuffi- cient either to justify the Regional Director's finding of substantial interchange or to detract from our con- clusion reached herein. Aside from yardmen and drivers and loaders, the employees occupying the classifications discussed above do not spend a consis- tently substantial period of time outside the area of the main building. While salesmen do venture outside this area on a somewhat regular, though limited, ba- sis, it is only to assist a customer in loading his vehi- cle: and while loaders admittedly spend the bulk of their worktime in the yard area, their schedules, as previously noted, allow for minimal actual work con- tact between them and unit personnel. Thus, we find that the record fails to substantiate the Regional Di- rector's finding of substantial integration among store employees and warehouse employees and drivers. In reaching our finding, we are cognizant that there are necessarily instances where the various groups of em- ployees act in concert in the furtherance of their job responsibilities and toward the completion of as- signed work. However, we find that these instances, on balance, are insufficient in both number and sub- stance to deny granting the unit sought. Where the retailing and warehousing operations of an employer coexist in a single setting, the Board must determine whether warehouse employees, when sought by a petitioner, possess such a distinct com- munity of interest as to warrant their inclusion in a separate unit. Upon consideration of all the facts dis- cussed above, we conclude that yardmen and drivers, the unit sought by Petitioner, possess a sufficient com- munity of interest to justify separate representation. As noted, yardmen and drivers alone perform a true warehousing function involving the presale handling and shipment of stock and inventoried items in a work area (the yard) generally not frequented by 641 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees, save for the loaders. The loaders, however, as previously noted, are primarily involved in the postpurchase handling of merchandise, an ac- tivity directly related to sales, and they are generally scheduled to work at such times that their work con- tact with unit members is, at best, de minimis. Finally. the yardmen and drivers enjoy immediate supervision separate from those other employees sought to be in- cluded by the Employer. These factors taken in con- junction indicate that yardmen and drivers enjoy the requisite identifiable community of interest apart from the Employer's remaining employees. Accord- ingly, we find the unit sought by the Petitioner to be appropriate for the purposes of representation and collective bargaining. In view of the above, we find the following unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All yardmen and drivers employed at the Em- ployer's facility located at 9900 West 191st St., Mokena, Illinois; but excluding all other em- ployees, office clerical employees, guards and su- pervisors within the meaning of the Act. [Direction of Election and Excelsior footnote omitted from publication.] 642