Tops Chemical Co.

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tops Chemical Company and Warehouse, Processing and Allied Workers, Local No. 6, International Longshoremen's and Warehousemen's Union, Petitioner. Case No. 20-RC-4716. June 21, 1962 DECISION ON REVIEW AND ORDER On October 24, 1961, the Regional Director for the Twentieth Region issued a Decision and Direction of Election in the above- entitled proceeding (not published in NLRB volumes) finding ap- propriate a production and maintenance unit, including truckdrivers, at the Employer's Richmond, California, chemical plant. Thereafter, the Petitioner, in accordance with Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, filed with the Board a timely request for review of such Decision and Direction of Election on the ground, inter alia, that substantial questions of fact and policy were raised with respect to the Regional Director's determination that the truckdrivers should be included in the requested unit. The Board, by telegraphic order dated November 16, 1961, directed the Regional Director to conduct the election and challenge the ballots of the truck- drivers pending consideration of the request for review. By tele- graphic order dated February 14, 1962, the Board granted the request for review and directed that the ballots of the truckdrivers remain impounded pending decision on review. Thereafter, the Employer filed a brief in support of the Regional Director's Decision. The Board has considered the entire record in this case, with respect to the Regional Director's determination under review, and makes the following findings : The Petitioner seeks a unit of production and maintenance em- ployees, excluding truckdrivers, at the Employer's Richmond plant. The Employer contends that the unit should include the truckdrivers on the ground, inter alia, that there is no request for their separate representation by any other labor organization. There are five full-time warehousemen and six employees who have spent varying time in truckdriving duties at the Richmond plant. Last year, three drivers drove full time from July through September, and during the "slack" driving season which extended from October until May, spent about a third of their time performing warehousing duties. Two other drivers drove trucks "most of the time" in July, August, and September but from October until May they likewise worked in the warehouse. The sixth driver spent about one-half of his time driving a truck from July through September and worked full time in the warehouse, from October through June. While working 137 NLRB No. 94. TOPS CHEMICAL COMPANY 737 in the warehouse, the truckdrivers work alongside the warehousemen, performing the same duties as the latter, except for filling bottles with bleach. The truckdrivers have a starting wage of $2.50 an hour as compared with the starting wage of $1.65 an hour for the warehouse- men. The truckdrivers are paid at the higher wage rate when they work in the warehouse. Both warehousemen and drivers work under the same foreman and otherwise have the same working conditions and benefits, except for different working hours. There is no bar- gaining history. In the recently issued Koester case,' the Board said, inter alia, that, absent a request for the separate representation of truckdrivers, it shall no longer hold that the inclusion of truckdrivers in broader, industrial units is automatically required. As to the unit placement of truckdrivers, the Board stated : In our evaluation we shall consider, among others, the following factors (1) whether they have related or diverse duties, mode of compensation, hours of employment, and (2) whether they are engaged in the same or related production process or operation or spending substantial portions of their time in such activities. If the interests shared with other employees is sufficient to warrant their inclusion, we shall include the truckdrivers in the more comprehensive unit. If, on the other hand, truckdrivers are shown to have such a diversity of interests from those of other employees as to negate any mutuality of interests between the two groups, we shall exclude them. As it is clear from the record in this case that the six disputed truckdrivers spend a substantial amount of their time performing work inside the plant and share a close community of interests with the warehousemen, or plant employees, we find that they properly belong in the production and maintenance unit. We therefore affirm the Regional Director's unit finding on the basis as set forth hereinabove 2 Accordingly, the case is hereby remanded to the Regional Director for the Twentieth Region for the purpose of opening and counting the ballots cast by the truckdrivers and proceeding further as required by the Board's Rules and Regulations, Series 8. [The Board ordered the ballots cast by the truckdrivers in the elec- tion held herein on November 21, 1961, be opened and counted, and 1 E. H. Koester Bakery Co ., Inc., 136 NLRB 1006. 2 Although Members Rodgers and Leedom dissented from the majority holding in the Koester case, they feel they should now consider themselves bound by that opinion in order to facilitate the disposition of these cases in the Region and at the Board level. 649856-63-vol. 137-48 '738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the said Regional Director proceed in accordance with Section 102.69 of National Labor Relations Board Rules and Regulations, as amended.] MEMBER FANNING took no part in the consideration of the above Decision on Review and Order. International Alliance of Theatrical Stage Employees and Mov- ing Picture Machine Operators of the United States and Canada, Treasurers and Ticket Sellers Local No. 862, AFL- CIO and Building Service Employees International Union, Public Events Employees Union, Local 188, AFL-CIO and Allied Maintenance Company of Pennsylvania, Inc. Case No. 6-CD-128. June 21, 1962 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act following a charge filed by Allied Maintenance Company of Pennsylvania, Inc., herein called Allied or the Employer, against International Alliance 'of Theatrical Stage Employees and Moving Picture Machine Oper- ators of the United States and Canada, Treasurers and Ticket Sellers Local No. 862, AFL-CIO, herein called Local 862 or the Respondent, alleging that Local 862 illegally coerced the Employer to change work assignments from one class of employees to another. A duly sched- uled hearing was held before George F. Mclnerny, hearing officer, on October 10, 1961. The Employer, Local 862, and Building Service Employees International Union, Public Events Employees Union, Local 188, AFL-CIO, herein called Local 188, appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record, the Board makes the following findings : 1. The Employer Allied Maintenance Company of Pennsylvania, Inc., is engaged in the business of operating and maintaining auditoriums and other build- ings used for public events performances. The parties stipulated that in carrying on this business, Allied has performed services in excess of $50,000 for companies which annually ship products in excess of $50,000 outside the State of Pennsylvania. 'WWe find that the Employer is engaged in commerce within the meaning of the Act. 137 NLRB No. 79.