Mc-Mor-Han Trucking Co., Inc.

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mc-Mor-Han Trucking Co., Inc. and General Drivers, Dairy Employees and Helpers Union Local 579, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Peti- tioner. Case 30-RC-567 June 30, 1967 DECISION ON REVIEW BY MEMBERS FANNING, JENKINS, AND ZAGORIA On January 23, 1967, the Regional Director for Region 30 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which he found appropriate a combined unit of truckdrivers and mechanics. Thereafter, the Petitioner in ac- cordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Se- ries 8, as amended, filed with the National Labor Relations Board a timely request for review of such Decision and Direction of Election, contending that the Regional Director erred in including mechanics in the requested unit of truckdrivers. The Employer also filed a timely request for review, asserting that substantial issues of law or policy were raised with respect to other findings made by the Regional Director in his Decision. The Board, by telegraphic order dated February 14, 1967, granted the Petitioner's request for review, denied the Employer's request for review, and stayed the election. Thereafter, the parties filed briefs on review. I Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board delegated its powers in connection with this case to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review, in- cluding the briefs of the parties, and makes the fol- lowing findings: The Petitioner seeks a unit limited to the truckdrivers. The Employer contends that the only appropriate unit should include both the truckdrivers and the mechanics. The Regional Director, upholding the position of the Employer, found that only the combined unit of truckdrivers and mechanics was appropriate. There is no prior history of bargaining for any of the Employer's em- ployees and no labor organization is seeking to represent the truckdrivers in a broader unit. The Employer is engaged in the over-the-road transportation of fluid milk within the States of Wisconsin, Illinois, and Indiana, operating a fleet of diesel tank trucks for this purpose.''-' Its only ter- minal facilities are located at Shullsburg, Wisconsin, and consist of an office, an employees' room, and a garage for the maintenance and repair of the Em- ployer's trucks and, to a lesser extent, those of its customers. There are approximately 34 regular full- time employees, including 24 over-the-road truckdrivers, 7 mechanics, and I employee who works regularly as a combined partsman and mechanic and, occasionally, as a substitute driver. The remaining two employees are office clerical employees who were excluded from the unit by agreement of the parties. The record shows that the truckdrivers have no regular starting time and work from 10 to 18 hours per day, 5 days per week. However, as the truckdriving is a continuous operation, the particu- lar 5 days which each driver works and the 2 days he has off duty vary from week to week. The drivers are usually paid on a mileage basis, but those assigned to "short runs" are paid a weekly sal- ary so that they will be adequately compensated for the large amount of waiting time invoived in their work. None of the drivers receives premium pay for overtime. All the drivers are certified by the In- terstate Commerce Commission, and ICC regula- tions control many aspects of their employment. The drivers do not perform mechanical work, ex- cept for minor repairs or adjustments on their trucks while out on the road and, on rare occasions, at the garage.3 Other than these rare occasions, truckdrivers are prohibited from entering the shop area where mechanics regularly work, pursuant to the provisions of a notice recently posted by the Employer. The mechanics have a normal schedule from 7:30 a.m. to 5.30 p.m., Monday through Friday, and un- til noon on Saturday. When emergency situations arise, they work additional hours or days for which they receive overtime premiums. They are paid on an hourly basis and, since December 1966, have punched a timeclock, being the only employees of the Employer who do so. The mechanics are also the only employees who wear uniforms, and these I The Employer did not file a brief on review within the period allowed therefor by the Board's Rules and Regulations. However, on March 2, 1967, the Employer filed with the Board a request for special permission to file a statement in response to Petitioner's brief In the absence of ob- jections by the Petitioner, the Board granted the request and, pursuant thereto, the Employee filed its brief on March 13, 1967, The Employer is also a franchised General Motors Trucking Corpora- tion dealer and, in connection therewith, sells trucks and truck parts and performs repair work for customers. The Employer asserts that this con- stitutes only a minor portion of its business ' Infrequently, and only after obtaining permission, a driver may do some work on his own assigned vehicle at the garage Thus, the Em- ployer's witness, truckdriver Glenn E Kinch, stated that he has done garage work such as changing a tire, aligning a wheel, and helping a mechanic "pull a wheel," However, his testimony indicates that these are not frequent occurrences, there having been intervals of I to 2 months between the occasions on which he has performed such work 166 NLRB No. 44 MC-MOR-HAN TRUCKING CO. 701 are supplied by the Employer. Most of their work is performed in the garage. The regular full-time mechanics do not do any over-the-road hauling of milk, which is the primary job function of the truckdrivers. Richard Walters, the combination partsman and mechanic, hauls milk on occasion, but only as a substitute on an irregular and infrequent basis, as further discussed infra. There are some truckdriving duties which the regu- lar mechanics perform; however, they are limited to the bringing of vehicles into the garage for service and road testing them, functions which are directly related and incidental to the mechanics' repair and maintenance responsibilities. The Employer's hiring qualifications for drivers are separate and distinct from its requirements for mechanics. The former are judged on the basis of their driving experience and need have no special mechanical background, while the latter are hired on the basis of their particular mechanical skills and experience. There is no indication in the record that employees normally progress from mechanic to truckdriver, or vice versa.4 The truckdrivers and mechanics are currently working under common supervision, although, until July 1966, it had been separate. All employees, in- cluding the excluded office employees, share the same vacation, hospital, medical, life insurance, and Christmas bonus benefits. They also make common use of the employees' room, although the truckdrivers' usage of this facility is limited because most of their time is spent away from the terminal. Based upon all the foregoing, we are unable to concur with the Regional Director's conclusion that only a combined unit of the Employer's truckdrivers and mechanics is appropriate. The Re- gional Director relied primarily on the Board's Decision in Marks Oxygen Company of Alabama, 147 NLRB 228. That precedent is inapposite. In Marks Oxygen the issue was not whether a separate unit of truckdrivers was inappropriate, as in the present case, but rather whether a requested unit combining truckdrivers with production and main- tenance employees was appropriate. The Board found that the more comprehensive unit there was an appropriate unit, but did not find that it was the only appropriate unit or that a unit limited to truckdrivers, if requested, would be inappropriate. While so ruling, the Board also specifically reaf- firmed its previous policies of not compelling labor organizations to seek representation in the most comprehensive grouping and of recognizing the desires of petitioners as being a relevant considera- tion in the making of unit determinations. A fair reading of Marks Oxygen indicates that in a given plant, depending upon the community of interest of the employees involved and the desires of the peti- tioning labor organization, truckdrivers may be represented either separately or as part of a more comprehensive unit. In any event, it is not the Board's function to compel all employees to be represented or unrepresented at the same time or to require that a labor organization represent em- ployees it does not wish to represent, unless an ap- propriate unit does not otherwise exist.5 The facts of this case do not reveal such a com- munity of interest or degree of integration between the truckdrivers and the mechanics as would render the requested truckdriver unit inappropriate. On the contrary, the traditionally distinct functions and in- terests of truckdrivers are clearly present here. They perform a function-the over-the-road haul- ing of milk-which is both different and separate from the work performed by the mechanics. Further, the regularly assigned road trips of the drivers require that they spend a substantial majori- ty of their working time away from the terminal, thus considerably limiting their work contacts with the mechanics. Finally, except for the infrequent driving assignments of Walters, there is no in- terchange between the two employee groups, their job classifications are dissimilar, and there are sub- stantial differences in their compensation, hours, and other conditions of employment. While there are also some employment interests which both groups share-identical insurance and holiday benefits and their current common supervi- sion-these factors are not so significant as to require the inclusion of all the employees in a single unit. Under circumstances similar to those extant herein, the Board has consistently held that truckdrivers comprise a functionally distinct group which may constitute a separate appropriate unit where, as here, a union seeks to represent them separately, there is no bargaining history, and no labor organization seeks to represent them in a broader units Therefore, we conclude from the en- ' During the 14 years the Employer has been in business, only three employees, Metz, Schoenhardt, and Walters, have changed job classifica- tions Except for Schoenhardt, who is no longer employed, it was not shown that the changes in status were on a direct transfer basis. Schoenhardt worked as a truckdriver around 1962, but resigned Two years later he was rehired as a mechanic and subsequently returned to truckdnving duties He last terminated his employment with the Em- ployer in 1965 Metz worked for the Employer as a truckdnver until quitting in 1961 Thereafter he became a certified welder and was rehired as a mechanic in November 1966. Walters last worked as a regular truckdriver about 9 years ago Some- time thereafter, in circumstances not shown by the record, he became a mechanic and still later was also placed in charge of the parts department He occasionally substitutes as a truckdriver in emergencies and when the full-time drivers are absent Ballantine Pac king Co , Inc, 132 NLRB 923, 925. Ballannne Packing Co , Inc , supra, and cases cited therein, see E H. Koester Bakery Company, Inc., 136 NLRB 1006, 1011; of E. I Dupont DeNemours and Company (May Plant), 162 N LRB 413. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tire record in this case that the Employer's truckdrivers enjoy a sufficient community of in- terest separate and apart from the mechanics to warrant finding them to be a unit appropriate for collective bargaining.7 There remains for determination only the question as to the unit placement of the multiple- function employee, Walters, who occasionally drives a truck and whom the Employer would in- clude in a truckdrivers' unit. Walters is primarily in- volved in running the Employer's parts department and in performing mechanic's duties. Walters works on the same schedule as the mechanics and wears a mechanic's uniform supplied him by the Em- ployer. He receives a weekly salary which is not af- fected by the nature of the job classifications in which he may work in any particular week, except that when substitute truckdriving duties occur on a Saturday afternoon or a Sunday, outside of his regu- lar hours, he is paid additional compensation on a trip basis. Walters' employment record shows that, during 1966, he did some truckdriving on all of, or part of, 20 days. These 20 days ranged throughout the year, but had no regularity, pattern, or con- sistent schedule. It is further noted that there were frequently periods in excess of I month between his driving assignments, and there were a total of 6 months in which he was not given any driving as- signments at all. We find, on the basis of the forego- ing and contrary to the Employer, that Walters does not perform a sufficient amount of work in the truckdriver unit to demonstrate that he has a sub- stantial interest in the unit's wages, hours, and con- ditions of employment, and he is, accordingly, excluded.' On the basis of the foregoing and the record as a whole, we find that the following employees con- stitute a unit appropriate for collective-bargaining purposes: All truckdrivers employed by the Employer at its Shullsburg, Wisconsin, terminal, excluding mechanics, casual employees, the parts department employee, office clerical employees, technical em- ployees, guards, and supervisors as defined in the Act, as amended. Accordingly, the case is remanded to the Re- gional Director for Region 30 for the purpose of conducting an election pursuant to his Decision and Direction of Election, as modified herein, except that the payroll period for determining eligibility shall be that immediately preceding the date of this Decision on Review." ' Archie`s Motor Freight, Inc, 130 NLRB 1627, 1629; Chemical Ex- press, 117 NLRB 29 8 Cf Berea Publishing Company, 140 NLRB 516, 518-519; Haag Drug Company, Incorporated, 146 NLRB 798, 800 " An amended election eligibility list, containing the names and ad- dresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 30 within 7 days after the date of this Deci- sion on Review. The Regional Director shall make this list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the elec- tion whenever proper objections are filed. Excelsior Underwear Inc , 156 NLRB 1236