Faulks Brothers Construction Co.

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sydney Faulks and Oliver Faulks d/b/a Faulks Brothers Construction Co. and General Drivers and Dairy Employees Union, Local No. 563, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 30-CA-874 June 2, 1969 DECISION AND ORDER By MEMBERS FAN NING, BROWN , AND JENKINS On February 18, 1969, Trial Examiner David S. Davidson issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Gmsel, the Charging Party, and the Respondent filed exceptions to the Trial Examiner's Decision and the General Counsel and the Respondent filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein. The Trial Examiner found that a unit of Respondent's truckdrivers is appropriate, but that it includes 12 employees. As the Union had cards from only six employees, he concludes that it did not have a majority. In finding a 12-man unit, the Trial Examiner includes, contrary to the contention of the General Counsel and Charging Party, four employees who drive trucks on a part-time or seasonal basis. We agree with the Trial Examiner as to the inclusion of these employees. With respect to employee Clarence Schuelke, one of the four included in the unit, the General Counsel contends that, although he spends approximately 50 percent of his time driving trucks, nevertheless, Schuelke does not share a sufficient community of interest with Respondent's other truckdrivers to warrant his inclusion. The General Counsel argues that he works on a different crew under separate supervision and his driving duties are of an entirely different nature than those of the other truckdrivers. Schuelke is the regular driver of the 5-yard dump truck. Approximately 50 percent of the time this truck is used in connection with blacktopping and curb and gutter work. When used in connection with blacktopping, it is used to haul blacktop and crushed gravel to the site, to spread the blacktop, and to haul the basic tools to and from the site. When used in connection with curb and gutter work, it is used to haul lumber, steel , and other materials required by that crew. During at least part of the remaining 50 percent of the truck's operation time it is used by Schuelke to make deliveries to customers. Schuelke also drives a 10-yard dump truck while making such deliveries. While the extent of Schuelke's deliveries to customers is not entirely clear, it is clear that he makes such deliveries on a regular basis.' What else, if anything, the 5-yard truck is used for is not set forth in the record. As Schuelke spends approximately 50 percent of his time driving trucks and spends a substantial portion of that time delivering orders to customers and hauling blacktop, gravel, lumber, steel, and other materials to Respondent's construction sites, Schuelke, in our opinion, shares a community of interest with Respondent's other truckdrivers and is properly included in the appropriate unit of Respondent's truckdrivers. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint be, and it hereby is, d ism issed. 'When asked about Schuelke 's duties, Sydney Faulks included the deliveries to customers in the 5-yard and iO.yard trucks in the list of such duties Richard Buck corroborated this testimony by indicating that Schuelke drives the 5-yard truck in making such deliveries and that Schuelke drives the 10-yard truck (although he did not indicate the purpose). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: Pursuant to charges filed on August 19, 1968, by General Drivers and Dairy Employees Union, Local No. 563, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union, a complaint issued on November 5, 1968, alleging that Respondent violated Section 8(a)(5) and (1) of the Act by refusing since on or about August 6, 1968, to bargain with the Union as the representative of Respondent's truckdrivers. The complaint also alleges that a strike commenced on or about August 6, 1968, and was caused and/or converted and has been prolonged by Respondent's unfair labor practices. In its answer Respondent denies the commission of any unfair labor practices. A hearing was held before me in Waupaca, Wisconsin, on December 19 and 20, 1968. At the close of the hearing the parties waived oral argument and were given leave to file briefs, which have been received from the General 176 NLRB No. 37 FAULKS BROTHERS CONSTRUCTION CO 325 Counsel and Respondent Upon the entire record in this case, and from my observation of the witnesses and their demeanor I make the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT Sydney Faulks and Oliver Faulks are partners doing business as Faulks Brothers Construction Company at Waupaca Wisconsin where they sell and deliver ready-mix concrete and other supplies to the building and construction industry and also are engaged as contractors in the building and construction industry During the calendar year prior to the issuance of the complaint, a representative period, Respondent purchased goods and materials valued in excess of $50 ,000 which originated outside the State of Wisconsin I find that Respondent is an employer engaged in commerce within the meaning of the Act and that assertion of jurisdiction herein is warranted II THE LABOR ORGANIZATION INVOLVED General Drivers and Dairy Employees Union, Local No 563, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Facts 1 The Organization of Respondent 's drivers In May 1968, Sydney Faulks received a report that one of the jobs to which he was supplying concrete might be picketed because he was hauling concrete on the job As a consequence Faulks arranged a meeting with Marv DeVries, a Teamsters representative The meeting took place on May 23 Representatives of the Operating Engineers and the local Building Trades Council also were present Faulks asked whether he could obtain a permit so as to be able to continue hauling concrete to jobs being performed by union labor The union representatives replied that he could not and indicated that they would picket the job which Respondent was then supplying if Respondent did not sign an agreement with the Teamsters The conversation continued for some time while those present discussed what the unions would want as contract terms DeVries gave Faulks a sample contract for informational purposes and the Operating Engineers representative told him that they would give him until the following Monday to reply Faulks stated that they had given him more to think about than he could handle within that time and that he doubted that they would hear from him by then ' After this meeting Faulks sought legal advice and was told among other things that if a union tried to present him with cards he should not look at them but tell the union that he did not believe that the cards represented an uncoerced majority of his employees He was advised that under no circumstances should he leave himself open to negotiations by looking at cards Respondent continued to 'Sydney Faulks testimony as to this meeting was uncontradicted service its customers after his meeting with the Union representatives and did not contact the Union On August 1, Robert Schlieve, secretary-treasurer and principal representative of the Union , met with four of Respondent's employees, William Peters, Godwin Voss, Richard Buck, and Norman Penney all of whom then drove ready-mix trucks Schlieve explained to them the wage rates and fringe benefits under an existing association-wide ready-mix contract in the Appleton, Wisconsin , area He told them that to secure recognition from Respondent it was necessary for them to sign authorization cards for the Union The employees indicated that they wanted a unit limited to ready-mix drivers Schlieve asked if Respondent employed other truckdrivers, and they indicated that it did As a result of their discussion Schlieve concluded that there were eight drivers who would constitute an appropriate unit He told the employees that as there were only four of them, they would not constitute a majority which would be necessary for recognition Schlieve stated that before he could make a demand for recognition they would have to secure a signed card from at lease one more employee The employees decided to approach Gene Eastman Schlieve gave them cards for them to sign and to take to Eastman and he instructed them to call his office if they secured five signed cards so that the cards could be picked up on the following day Schlieve explained that in the event that a majority signed cards, copies of the cards would be sent to Respondent with a demand for recognition , as proof of the Union's majority status The four employees and Eastman whom they visited that night, signed cards The next day the cards were transmitted to Schlieve 2 The picketing at the plant On the morning of August 6 the employees who had signed cards did not report for work , but along with Union representatives and some other persons set up a picket line outside Respondent's yard I The picketing began around 6 45 in the morning The picket line was placed next to the highway in front of the driveway leading into the Respondent's office and yard The pickets carried signs which indicated that the employees of Faulks' Brothers Construction Company were members of Teamsters Local 563 and were on strike During the day the signs were carried by various persons on the picket line including the employees of Respondent Shortly after the picketing started employee Gordon Woodard approached the picket line and stopped on the shoulder of the highway Schlieve and Jeff Curtin , another Union representative, went to Woodard's car and told him that a majority of Respondent's truckdrivers had designated the Union as their bargaining agent and were engaged in picketing to secure recognition from the employer in the attempt to negotiate a contract Woodard asked if he could go to work Schlieve told him that he could and that it was a decision he would have to make but that they would appreciate his cooperation since he would receive all the benefits of any contract negotiated Woodard indicated that he wanted to be with the rest of the drivers Schlieve told him that if he wanted to be with them, he should sign an authorization card and authorize the Union to bargain for him to solidify the drivers' 'Norman Penney had been given orders the night before to report for work early in order to deliver a load of concrete He went to the plant at 5 30 in the morning delivered a load of concrete returned to the yard cleaned out his truck and then left to join the picket line 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position with the Respondent Woodard signed a card and gave it to Schlieve He asked if he had to picket, and Schlieve replied that he did not as long as he was with them and that it would help the other drivers if he merely stayed home Woodard left and did not work that day At the time the picketing started Sydney Faulks was away on vacation, and Oliver Faulks had been absent from Respondent's premises for approximately one month, with minor exceptions, recuperating from an operation Shortly after the picketing began, Oliver Faulks was called to come to the plant As Faulks pulled into the driveway of the plant he stopped and asked Schlieve what was going on Schlieve told him that the Union had a picket line and represented a majority of the truckdrivers He stated that he had cards to prove it and asked,Ujiulks to bargain with him Faulks said he had nothingbto do with it and drove into the yard to park his car A few minutes later he came back to Schlieve, and Schlieve as ked him to get together and settle the matter Faulks reached into his pocket, pulled out a card, handed it to Schlieve He said that he did not want to talk to Schlieve but that Schlieve should talk to the man whose name was on the card The card bore the name of an attorney and indicated his association with the law firm representing Respondent in this case Schlieve looked at the card, laughed, and fold Faulks that the attorney whose name waon the card was no longer with the firm He added that he did not want to talk with an attorney but wanted to talk with Faulks because the striking employees worked for him ' Faulks left and went towards his office Shortly Faulks returned with a camera and attempted to take pictures, but each time he tried to do so Schlieve placed his hand in front of the lens of the camera Schlieve again sought to induce Faulks to talk with him, but Faulks repeated that he had nothing to say to Schlieve and went to his office During that day word of the strike was sent to Sydney Faulks He immediately returned from his vacation arriving at his office in the late afternoon and observing the employees on the picket line as he entered The picketing continued every day thereafter and was in progress at the time of the hearing However, as the Respondent's employees obtained other employment, they left the picket line 3 The Union's letters to Respondent On August 6, Schlieve sent a certified letter to Respondent In it he claimed that the Union represented a majority of the employees in a unit of all truckdrivers and requested recognition With the letter he enclosed photostatic copies of the six authorization cards that he had then received On the following day Respondent refused delivery of the letter and it was returned to the Union unopened 'Both Schlieve and Oliver Faulks testified as to their encounters on the morning of August 6 and there are conflicts in their testimony According to Faulks Schlieve did not request recognition or state that he represented a majority of the truckdrivers at any time but merely asked Faulks to get together with him to we what they could do about the situation Faulks also testified that Schlieve did not say that his attorney had left the firm but that the law firm was no longer in business As the attorney whose name was on the card had left the law firm shortly before these events, as Schlieve had dealings relating to other employees with the law firm during that period and as it is unlikely that Schlieve, an experienced Union representative faded to state the nature of the situation that he wanted to discuss with Faulks, I have credited Schlieve, and not Faulks, as to their encounters On August 7, Respondent's attorneys wrote the Union, stating that delivery of the Union's letter to Respondent had been refused and notifying the Union that they had been retained by Respondent and were authorized to direct the Union that any communication which it desired to have with Respondent be directed to them On August 9, 1968, Schlieve addressed a second letter to Respondent at its offices In it he reiterated his claim to represent Respondent's truckdrivers and again requested a meeting with Respondent He asserted that he had sought to arrange a meeting through Oliver Faulks and that Faulks had refused to meet with him He charged that Respondent's conduct was a breach of its obligation to bargain with the Union and stated that the Union would file unfair labor practice charges with the Board Respondent also refused delivery of that letter 4 The meeting between the Faulks brothers and Schlieve At this time Respondent had a contract to supply a substantial quantity of concrete, amounting to approximately one-third of its annual sales, to a construction job being performed with union labor by Hutter Construction Company Soon after the picketing began, representatives of Hutter Construction Company, who were anxious to avoid interruptions to concrete deliveries to the job, contacted the Faulks brothers and urged them to meet with the Union to see if they could settle the dispute and end the picketing On August 12, Sydney Faulks told Hutter's superintendent that he would meet with a Union representative for the purpose of listening to the Union but without any obligation On the night of August 13, the meeting was held at the Rainbow Supper Club in New London, Wisconsin Sydney and Oliver Faulks attended for Respondent without counsel Schlieve represented the Union and was accompanied by Elmer Jacobson a representative of the Appleton Building Trades Council Al Beaudry, general superintendent for Rutter Construction Company, also was present At the outset of the meeting in response to a question of Sydney Faulks, Schlieve explained that Jacobson was present because of his concern that Hutter's project not be curtailed, and Jacobson indicated that he had no other interest in the matter During the meeting, which lasted for about 2 hours, Schlieve explained that he was only there to talk about the truckdrivers and not about any of the Respondent's other employees Faulks made some comments about the drivers who were picketing, and stated that Woodard, who had returned to work 2 days before, did not want any part of the Union Schlieve opened the letter which he had sent Respondent on August 6, took out the copies of the Union authorization cards that were enclosed, and placed them in front of Faulks Faulks looked at them, and Schlieve asked him if he recognized the signatures Faulks laughed and replied that he would not even recognize his wife's signature if he saw it On further questioning by Schlieve, Faulks stated that he did not question that the Union had the cards and that he had observed the employees on the picket line 'The meeting was arranged by intermediaries, and it was Faulks understanding that it would be off the record Apparently at the insistence of the Union, he agreed to attend unaccompanied by an attorney 'Schlieve Jacobson and Sydney Faulks all testified as to what was said at this meeting Where their testimony is in conflict, I have credited Schlieve as corroborated by Jacobson Although Oliver Faulks was also FAULKS BROTHERS CONSTRUCTION CO. 327 Schlieve and Faulks discussed the existing wages and terms and conditions of employment of Respondents' employees. Schlieve told Faulks at some length what the Union would want as the terms of a contract and gave Faulks a copy of a master agreement applying to the Appleton area for informational purposes but told him that it was not to be construed as a proposal. During the meeting Beaudry indicated that he was anxious to start pouring concrete 2 days later. At the conclusion of the meeting when discussion had been exhausted Faulks indicated that he would meet with his lawyers on the following morning and get an answer to Schlieve. Schlieve indicated that as soon as Faulks contacted him he would have a contract typed so that they could get the matter settled in time to fit Beaudry's schedule. Following this meeting Sydney Faulks did not contact Schlieve again. On August 16, Schlieve wrote Respondents' attorneys in reply to their letter of August 17. In his letter he stated that his business was with the Faulks brothers as principals and that he had reason to believe that Respondent's attorneys had over-represented the scope of their authority, but that he was not interested in becoming involved in questions as to their authority. He continued that as a matter of courtesy he was enclosing a copy of his August 9 letter to Respondents and asserted that he continued to insist that Respondent recognize and bargain with the Union as the representative of the truckdrivers. On August 19 Schlieve received a reply to his letter in which Respondents' attorneys stated that if Schlieve continued to doubt that they represented Respondents they would furnish written proof. The letter also stated that Respondent doubted that the Union represented an uncoerced majority of Respondents' employees in an appropriate unit. 5. Woodard's attempt to withdraw his authorization card As set forth above, on August 11, Woodard returned to work and continued to work thereafter. Shortly after August 15, 1968, Schlieve received a letter bearing that date from an attorney in Weyauwega, Wisconsin, in which he asserted that he had been requested by Gordon Woodard to write Schlieve. The letter asserted that Woodard now understood that he had signed a union membership application and had no intention at the present time of joining the Union or participating in any of its activities and therefore requested that the card he presen t t r^Ziout this meeting and testified with respect to other matters, he was not questioned about the events at this meeting , and Beaudry did not testify. Sydney Faulks testified that when Schlieve stated near the outset of the meeting that he had five or six of the drivers signed up, his brother Oliver said they were not there to discuss recognition, and he stated that they were there to talk informally and not to talk about recognition . According to him, the conversation then turned to the contents of Teamster contracts . He testified that at the and of the meeting , Schlieve attempted to show him the cards and he resisted efforts by Schlieve to induce him to concede that the cards had been signed by his employees, following the advice of his attorneys that he lacked the capacity to judge whether the Union represented them . I have not credited his uncorroborated testimony. I have considered Respondent's argument that Faulks' version is more plausible than Schlieve's in the light of Respondent's other actions during this period and the advice he had received. However, in view of the pressures upon Faulks to which he acceded in attending the meeting and his impression that the meeting was off the record I do not consider it implausible that he made the statements attributed to him by Schlieve . Their significance is of course a separate question. had signed be returned to him. The attorney also stated that he assumed that Woodard intended to wait for a representation election in the event that one was held. On August 23, Schlieve replied by letter asserting that at the time Woodard signed the application for membership he fully understood what he was signing and its contents were explained to him. Schlieve asserted that no mention of a representation election was made at the time. He stated that he would not return Woodard's application and did not wish to discuss the matter further with the attorney. He expressed the view that Woodard had designated the Union to represent him in the area of collective bargaining and not his attorney. Insofar as the record indicates there were no further communications with respect to Woodard's card.' 6. Respondent's work force At the time the Union's picketing began, Respondent employed 23 employees apart from supervisors. Four were students who worked for Respondent during their summer vacations. Respondent engages in several different operations which are seasonal in nature. It engages in general excavating, sale and delivery of ready-mix concrete, crushing of sand and gravel, heavy equipment operation, black top, curb, and gutter construction, and installation of septic tanks. Respondent owns and operates six ready-mix trucks, one of which can be converted into a dump truck for other uses. It has two other large dump trucks and a smaller 5-yard dump truck. Respondent also owns a tractor and a trailer, referred to as a low-boy, which is used for hauling heavy equipment to jobsites. Its heavy equipment includes three or four drag lines, two bulldozers, two or three end-loaders, and a tractor equipped with a bucket and a blade. The construction season lasts approximately from April through October each year. During the slack season starting in November and continuing for from 3 to 5 months Respondent assigns some of its employees to drive its two large dump trucks and the converted ready-mix truck to haul sand and gravel from sand and gravel pits to its yard for stockpiling for the next ready -mix season. During that period the hauling -in operation continues around the clock with three shifts of drivers.' At other times of the year materials are hauled in on a sporadic basis if supplies run low. There are two employees, Alvin Ratzburg and Marlyn Handrich, whose principal duties are driving the two large dump trucks. Ratzburg occasionally has done other odd jobs around Respondent's yard, and Handrich occasionally operated a back hoe if Bruce Helbach, the regular operator, was unavailable. During the construction season they hauled sand, gravel, and other materials to Respondent's construction sites and to customers of Respondent. During the slack season they drove in the stockpiling operation. Ratzburg is paid $1.95 an hour, and Handrich is paid $2 or $2.10. According to Sydney Faulks, they drove more than any of Respondent's other employees. The dump truck drivers are supervised by 'Woodard did not appear as a witness in the hearing before me and the letters described above are the only evidence relating to an attempted withdrawal by Woodard of his union authorization card. Oliver Faulks testified that before Woodard returned to work, Woodard spoke to him about coming back to work and claimed that he had signed the card for the Union after being told that he would lose his job unless he signed. 'During this operation drivers load their own trucks using an end loader. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's dispatcher Schlafer. At the time the picketing started, there were six employees who were regularly driving the ready-mix trucks. They were Norman Penney, William Peters, Gordon Woodard, Godwin Voss, Gene Eastman, and Richard Buck. During the ready-mix season, these employees drove ready-mix trucks whenever there was ready-mix to be delivered. They estimated that they spent from 80 to 90 percent of their time delivering ready-mix and performing related duties. The related duties included filling bins with ready-mix materials, weigh hatching their own loads, and pouring excess concrete left after deliveries in forms at Respondent's yard. Weigh hatching took from 5 to 10 minutes for a load, and filling bins took from half an hour to an hour. The latter job was not required for every load, and the drivers took turns at doing it when there were no deliveries for them to make. During heavy delivery periods, other yard employees weigh batched and filled bins. At least some of the drivers as well as other yard employees built forms for the excess concrete when there were no deliveries to be made. These were for manhole covers, parking lot bumpers, and slabs for mason's sand. When drivers returned with excess concrete, they poured it into the forms and leveled it. During their slack time the drivers also serviced their trucks and performed minor repairs on them. Although there is some testimony that each driver was regularly assigned to a single truck , it appears that there was some changing of trucks among the drivers. Of the six drivers, only Eastman had a chauffeur's license which he obtained when he was not employed by Respondent.' On occasion some of the drivers were assigned to work with construction crews when there was no delivery work for them. During the slack season, Penney made such ready-mix deliveries as there were, estimating that he was so occupied approximately 50 percent of the time. The remainder of his time he worked around the shop servicing trucks and he occasionally drove a dump truck. Voss was employed in April 1968 and had never worked during a slack season . The remaining four drivers had driven dump trucks hauling in materials for stockpiling during past slack seasons. Of the six employees, Penney was paid $2 an hour. Eastman, who was discharged in March, 1968, and reemployed in July, was paid $1.95 an hour. Peters was paid $1.90, and Woodard and Voss were paid $1.85 an hour. Buck, whose pay rate does not appear, was employed for approximately 7 years until July 1, 1968, on the curb and gutter crew engaged principally in construction work. During that period he served as a substitute ready-mix driver. He estimated that he drove about 20 percent of the time during that period. On July 1, 1968, around the time that another ready-mix driver left, Buck was assigned to drive a ready-mix truck, and did so practically all of the time thereafter until the picketing started. Sydney Faulks testified without contradiction, and Voss corroborated him as to his own hire, that all his employees were told when they were hired that they would 'According to Sydney Faulks, he believed that a chauffeur's license was required if 50 percent or more of an employee's income was derived from truckdrivmg. He testified that he had checked with the police and understood that none of his employees were required to have chauffeur's licenses. No other evidence was adduced as to the circumstances under which a chauffeur's license was required. be required to do whatever was available and they were not guaranteed any specific duties to perform. Emloyees were used where needed and trained to be useful in various jobs. However, Faulks also testified that when there was a driving job to be done, an employee was assigned to it and left on it until he was needed elsewhere. Employees were not switched around for the sake of switching but left on an assignment as long as possible. Employees' pay rates remained constant regardless of their assignments, and all employees received the same insurance and vacation benefits. As for Buck, Faulks testified that his assignment to ready-mix driving was intended to be temporary and was made because he needed to keep the trucks operating. Faulks, however, did not tell Buck that the assignment was temporary, and he testified otherwise that no job assignments were of definite duration. In addition to the two dump truck drivers and the six ready-mix drivers Respondent employed a number of other employees. Two employees, Carl Jensen and Clarence Lipke, operated Respondent's crushing plant at a sand and gravel pit. Jensen was paid $2.10 or $2.15, and Lipke was paid $2.30 an hour. The crushing plant operates from June to October. Lipke's duties during the off season are not indicated,' but Jensen drives a dump truck in the stockpiling operation.- The curb and gutter crew was supervised by Everett Roloff. Others on the crew were Clarence Schuelke, Bruce Helbach, Gene Johnson, and Ronald Moser." The curb and gutter crew does curb and gutter work, black top work, and septic tank installations. Clarence Schuelke worked as a general laborer on this crew and drove the 5 yard dump truck, mostly in conjunction with its work. Others on the crew also drove the truck, and as set forth below, the record is not entirely clear as to the extent of Schuelke's driving duties. The truck is used principally to haul black top to construction jobs, and to haul gravel and other materials to construction jobs and to customers. Schuelke also drove a larger dump truck on occasion. Schuelke did not drive during the stockpiling operation, and insofar as the record shows, he did not work for Respondent during the slack season . He was paid $1.85 an hour. Bruce Helbach usually operated a back hoe in connection with the installation of septic tanks. He drove the low-boy to move his back hoe from job tc fob." 'Faulks testified that Lipke was in line with others for off season work and took a turn with others in driving. Peters testified that Lipke did not drive much that he knew of, and no one testified that he was a regular stockpiling driver. I find that he had no appreciable driving duties. "Although Buck testified that Jensen had continued to operate the crushing plant during the stockpiling season for the past 2 years, both Peters and Eastman testified that he drove a truck in that operation. As Peters started to work in April, 1967, it is doubtful that he would have so testified if Jensen was removed from that work before Peters was employed Sydney Faulks also testified that Jensen drove a truck during the off season I find that Jensen was one of the stockpiling drivers In addition, during the summer of 1968 , Respondent employed four students on summer vacation to work on the crew. All but one had worked for Respondent for two or three summers . They are hired each summer as needed, and Respondent does not expect them to become permanent employees when they finish their schooling These employees drove trucks in conjunction with the work,of the curb and gutter crew only on occasion. Because of their status as students , they would not be included in any unit found appropriate . Post Houses. Inc. 161 NLRB 1159, enfd 384 F.2d 463, (C.A. 3). "According to Sydney Faulks, Helbach drove a truck on many occasions, but Faulks did not elaborate FAULKS BROTHERS CONSTRUCTION CO. During periods of heavy ready-mix volume, Helbach worked on occasion as a weigh batcher in the ready-mix opetation. Helbach was paid $2.30 an hour. Gene Johnson was described by Peters as assistant foreman on the curb and gutter crew. However, there is no evidence that he is a supervisor within the meaning of the Act. During the construction season he performed a variety of duties with the crew. Johnson drove a truck on occasion for short periods in conjunction with his duties and occasionally substituted for other drivers. During the slack season, Johnson regularly drove a dump truck in the stockpiling operation." Johnson was paid $2.30 an hour. Ronald Moser usually worked on the curb and gutter crew. According to Sydney Faulks he was available for call by Schlafer when an extra driver was needed and no one else was available. Although Peters identified Moser as a regular stockpiling driver during the slack season. he later testified that Moser drove once in a while and that he could not say how often. He was not otherwise identified as a regular stockpiling driver. Moser was paid $2.30 an hour. Three employees, Wayne Zabel, Elmer Miller, and Daniel Buchholz, normally operated heavy equipment during the construction season. All three occasionally drove the low-boy or other trucks to move their equipment, and Buchholz occasionally moved heavy equipment for others to operate. During the slack season, Zabel regularly drove a dump truck in the stockpiling operation. The others did not. Zabel also occasionally substituted for other drivers during the construction season. Zabel was paid $2 or $2.10 an hour, Miller was paid $2.25 an hour, and Buchholz was paid $2.50 an hour. In addition, Respondent employed Clara Jensen, a janitress, and Lewellyn Faulks. Lewellyn Faulks is a brother of Sydney and Oliver. He worked as a mechanic and dealt with special problems as they arose. He is treated differently from other employees for pay purposes. B. Conclusions 1. The appropriate unit The General Counsel contends that a unit of Respondent's truck drivers in which the Union sought recognition is an appropriate unit and that at the time of the Union's request it was composed of the eight employees whose principal duties were driving Respondent's large dump trucks and the ready-mix trucks. Respondent contends that because of the nature of its operations a unit of truckdrivers excluding all its other employees is not appropriate and that even if a truckdrivers unit is appropriate, it should be composed of the three employees who drive dump trucks during the stockpiling operation and Clarence Schuelke as well as the other dump truck and ready-mix drivers. Respondent would also exclude Richard Buck from the unit on the ground that his assignment as a ready-mix driver was only temporary. Counsel for the General Counsel and Respondent filed able and helpful briefs on these and the other issues in this case. Respondent contends that in recent years the Board has announced unit policies which point to a case by case consideration of quasi-craft units and away from the presumption of appropriateness that previously applied to such units." Respondent contends that these policies applied to the instant case warrant the conclusion that "Peters so testified without contradiction. 329 Respondent's truckdrivers do not constitute a readily identifiable and homogeneous group with different interests from those of Respondent's other employees. The General Counsel relies on the other hand on a separate line of cases which he contends recognize and accomodate special problems in the construction industry and establish the appropriateness of the separate truckdrivers unit.15 The General Counsel concedes that for purposes of the construction industry exception to Section 8(e) of the Act Respondent's ready-mix and materials supply operations are not considered to be in the construction industry," but contends that for unit purposes the Board has never drawn a distinction between the materials supply and construction industries." While there is much that is persuasive in Respondent's argument, I note that in setting forth its approach in the cases relied upon by Respondent the Board stressed that functional differences which form the basis of separate truckdrivers units vary "greatly from industry to industry and from employer to employer, depending to a large extent upon particular business practices."' B In R. B. Butler, Inc., 160 NLRB 1595, the Board found appropriate a separate unit of construction laborers, stating that "In the construction industry, collective bargaining for groups of employees identified by function as well as those groups identified by craft skills has proven successful and has become an established accommodation to the needs of the industry and of the employees so engaged." The Board has established other functional units in the construction industry finding them to constitute readily identifiable and homogeneous groups with a separate community of interests even where there has been no clear separation of duties between the employees in the unit and other employees and there has been close functional relationship between the employees in the unit and other employees." I conclude that the cases relied upon by Respondent do not govern unit determinations in the construction industry.S0 Here it is true that Respondent's ready-mix and material supplies operations may not be considered for all purposes as part of the construction industry. But the considerations which may exclude them from the construction industry exception to Section 8(e) of the Act are not the same as those that relate to a unit determination. Respondent's drivers deliver materials both to outside customers and to Respondent's construction sites. Its outside customers are themselves, at least to a considerable extent, in the construction industry. A principal basis advanced by Respondent for denying a separate drivers unit is that their functions and duties are "Citing Kalamazoo Paper Box Corporation, 136 NLRB 134; Malllnckrodt , Chemical Works, 162 NLRB 387; E. H. Koester Bakery Co., Inc., 136 NLRB 1006; and Ore-Ida Foods, Inc, 146 NLRB 464 See also Sylvania Electric Products, Inc, 135 NLRB 768 "Citing, inter aha, R B Butler, Inc. 160 NLRB 1595, Roadhome Construction Corp , 170 NLRB No . 91; Graver Construction Company, 118 NLRB 1050; Lewis & Bowman, Inc.. 109 NLRB 796 "Drivers, Salesmen , Warehousemen, etc, Local Union No. 695. et al, 152 NLRB 577, 581 , enfd 361 F 2d 547 (C.A.D.C ). "Citing Graver Construction Company, supra, which the Board cited in R. B. Butler, Inc., supra. "Kalamazoo Paper Box Corporation, supra at 137. See also E. H. Koester Bakery Co., Inc ., supra at 1010; Mallinckrodt Chemical Works, supra at 397. "Roadhome Construction Corp., 170 NLRB No. 91; Hydro Constructors , Incorporated. 168 NLRB No 19; New Enterprise Stone & Lime Company, Inc. 172 NLRB No. 240; W C Hargis & Son, Inc. 164 NLRB No. 153, Hychem Constructors . Inc, 169 NLRB No. 138. "See Hydro Constructors, Incorporated, supra, fn. 2 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD closely related to those of Respondent 's construction employees and that there is substantial interchange between the two groups. I conclude under these circumstances that for unit purposes Respondent's business is to be considered as in the construction industry and that the line of cases relied upon by the General Counsel applies. It remains to be determined whether under these cases there is a readily identifiable and homogeneous group of drivers with a separate community of interests from Respondent's other employees . I conclude that there is. Despite their lack of chauffeurs' licenses, the full significance of which it is difficult to determine on the record, I am persuaded from the facts set forth above that Respondent employs eight employees whose principal duties are to drive its six ready-mix trucks and its two dump trucks. These employees work under the separate supervision of Respondent's dispatcher . Although the pay rate of Buck is not established and pay rates generally may reflect length of service," the pay of the drivers as a group tends to be lower than that of Respondent's employees who are predominantly engaged in other activities during the construction season . The evidence establishes that during the construction season all of these employees are engaged predominantly in driving or closely related loading, unloading , and truck servicing duties.=' During the slack season six of them drive dump trucks in the stockpiling operation . One of the others continues to make ready-mix deliveries a substantial portion of his time, and the remaining employee has not yet worked for Respondent during the slack season . I conclude that the drivers are a readily identifiable and homogeneous group of employees with sufficiently clear separate interests to constitute a separate appropriate unit. Ratzburg, Handrich, Peters, Penney, Voss, Eastman, and Woodard clearly are within the appropriate unit. As for Buck, it appears that until 5 weeks before the picketing began he drove only on an occasionally basis approximately 20 percent of the time. At that time he took the place of a former employee whose principal duties were driving a ready-mix truck . Respondent contends that Buck 's assignment to ready-mix driving was only temporary . The picketing and Buck's participation in it makes it impossible to measure that contention against events after the picketing began. However, there is no evidence that Buck was ever told that his driving assignment was temporary . Although his assignment to driving occurred during the busy portion of the ready-mix season, it was also during the season for the curb and gutter crew when Buck was most likely to be needed there. There is no evidence to indicate that the need for a driver in the slot occupied by Buck was temporary or likely to end before the ready-mix season tapered off and there is no evidence that Respondent had taken any steps to hire another employee to replace the driver who had left so that Buck could be returned to his former duties. In these circumstances, I conclude that Buck's assignment conformed with the general policy described by Sydney Faulks and was indefinite in duration, to last as long as he was needed as a driver or until an overriding need might dictate his reassignment. I conclude that Buck was in the drivers unit when the picketing began. "The record however does not contain sufficient evidence to support this contention of Respondent. "T a Beechnut Life Savers Co., Inc., 118 NLRB 123, 124; Maule Industries, Inc., 117 NLRB 1710, 1713, 1714, DaUas Concrete Company, 102 NLRB 1292, enfd . 212 F.2d 98 (C.A. 5). As set forth above, Jensen, Johnson, and Zabel drove on a regular basis only during the stockpiling season. The General Counsel, contrary to Respondent, contends that they should be excluded from the unit. The General Counsel contends that they do not share a sufficient community of interest with Respondent's regular truckdrivers to justify their inclusion in the unit because their basic skills, functions , and supervision during the construction season differ from those of the other drivers and they devote less than a majority of their total working time to truckdriving duties. Respondent contends that they are dual function employees whose full time assignment to driving duties for up to 5 months of the year gives them a substantial community of interests with the other truckdrivers. In Berea Publishing Company, 140 NLRB 516, the Board found appropriate a unit of composing room and art production employees of a newspaper publisher. The newspaper employed several regular part -time employees in these departments who were included in the unit under established standards. At issue was an additional employee who regularly spent 40 percent of his time in these departments and the remainder in other departments of the employer. Noting that this employee would have been included in the unit if his sole duties for the employer were limited to the time he worked in the unit, the Board overruled its decision in Denver-Colorado Springs-Pueblo Motor Way, 129 NLRB 1184, and reverted to the rule earlier established in Ocala Star Banner, 97 NLRB 384, for determining the placement of dual-function employees. It held: 97 NLRB 384, for determining the placement of dual-function employees. It held: [W]e now believe that a dual-function employee devoting less than 51 percent of his time to unit work may have sufficient interest in the unit's conditions of employment to be included in the unit . In this respect, we can perceive no distinction between the part-time employees, who may work for more than one employer, and the employee who performs dual functions for the same employer. In this case the three employees under consideration performed their driving functions on a seasonal basis rather than on a regular part-time basis. However, under the reasoning of Berea, if they would have been included in the unit as seasonal employees assuming that they performed no other duties for Respondent, then it would appear that they should be included despite the fact that their additional duties are performed for Respondent. The stockpiling season lasted from 3 to 5 months of the year. During that season although they retained their higher rates of pay Jensen, Johnson, and Zabel drove regularly and performed duties indistinguishable from those of the other drivers under common supervision. If they had worked for Respondent only during the stockpiling season , they would be found to have a sufficient community of interest with the other drivers to warrant their inclusion in the drivers unit .'3 Despite the fact that they work less than 51 percent of the time as drivers, I conclude that these employees have substantial community of interests with those of the other drivers. Thus, apart from rates of pay, they have an obvious interest in hours of work, shift schedules, work assignments, and other conditions of employment of the "Lane Drug Co.. 160 NLRB 1147, 1148, enfd. as modified 391 F.2d 812. (C.A. 6), cert. denied 393 U.S. 837. FAULKS BROTHERS CONSTRUCTION CO. drivers during the slack season. Although their wages may now be higher, they have an interest in any increases which might reverse their position relative to the other drivers as well as other benefits which might apply to the drivers. Accordingly , under the principles set forth in Berea, I conclude that Jensen, Johnson , and Zabel should be included in the drivers unit." The remaining employee at issue is Clarence Schuelke who also appears to be a dual-function employee. As noted above , the evidence as to the extent of Schuelke's driving is less than clear . Buck testified at one point that Schuelke was a general laborer who drove a truck 50 percent of the time. At another he testified that Schuelke drove the truck about as much as others on his crew. Although the General Counsel contends that it is obvious from Buck's testimony that the former estimate related to an earlier period of Schuelke's employment , I do not find Buck's testimony that clear. At best Buck indicated that he was not familiar with Schuelke's duties during the summer of 1968, but I do not construe Buck 's testimony as establishing that there was a change in Schuelke's duties. Sydney Faulks testified that most of Schuelke's time was spent in driving the 5-yard truck but a reasonable amount of his time was also spent working with Helbach in the installation of septic tanks and that others also drive the 5-yard truck. According to Faulks, Schuelke also occasionally drove a 10-yard truck hauling materials and delivering orders . Schuelke ordinarily did not drive in the stockpiling operation. The 5-yard truck was used mainly to haul black top to sites where the crew was working . For that purpose, it was attached to the spreader. While the driver remained in the truck, the crew operated the spreader. It was also used to haul road gravel in preparation for black top jobs, to haul construction tools to jobsites , and to haul materials to customers. Faulks estimated that the truck was used in conjunction with the curb and gutter crew about 50 percent of the time and that Schuelke normally drove it when used by the construction crew. The estimates of the allocation of Schuelke's time are not precise, but I find , considering Buck 's and Faulk's testimony together, that Schuelke was the driver who normally drove the 5-yard truck when used in conjunction with the curb and gutter crew, that Schuelke also drove that truck and Respondent's other dump trucks on deliveries not related to the work of the construction crew, and that his total driving duties took approximately half of his working time . Under the rule set forth in Berea, it need not be established that the duties of a dual function employee which are common with other unit employees predominate." Schuelke's driving duties if performed on a regular part-time basis would warrant his inclusion in a drivers unit . Accordingly, I conclude that Schuelke is properly included in the unit with Respondent 's other drivers. Accordingly, I conclude that a unit of all truckdrivers, excluding all other employees , guards, and supervisors as defined in the Act, is appropriate for purposes of collective bargaining, and that on August 6 , 1968, at the time of the Union 's initial request for recognition, the following employees were included in that unit. Alvin Ratzburg Marlyn Handrich Norman Penney William Peters Godwin Voss Gordon Woodard Richard Buck Gene Eastman Carl Jensen Gene Johnson Wayne Zabel Clarence Schuelke 331 2. The Union's majority and concluding findings As set forth above, on the morning of August 6, 1968, at the time Schlieve first requested recognition from Respondent he had in his possession cards signed by the six employees then assigned to ready-mix driving. Not until August 15 at the earliest was there any effective revocation of the card signed by Woodard, but no additional cards were obtained by the Union. As I have found that there were 12 employees in the unit of truckdrivers, the Union had one less authorization than needed to establish itself as the majority representative of the employees in that unit. Therefore, the Union was not the representative of the drivers unit within the meaning of Section 9(a), and Respondent was not obligated to bargain with the Union at the time of the Union's request for recognition or thereafter. As the only unfair labor practice alleged in the complaint is that Respondent refused to bargain with the Union in violation of Section 8(a)(5) of the Act, I conclude that the violation has not been established and that the strike which started on August 6 was neither at its inception nor was it later converted to an unfair labor practice strike. Accordingly, I shall recommend that the Complaint be dismissed. CONCLUSIONS OF LAW 1. Sydney Faulks and Oliver Faulks d/b/a Faulks Brothers Construction Co. constitute an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. General Drivers and Dairy Employees Union Local No. 563, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in any of the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, I recommend that the Board issue an order dismissing the complaint in its entirety. "See W. C. Hargis & Son. Inc., 164 NLRB No. 153. in which Berea was applied in determining the composition of a drivers unit in the construction industry, albeit with a contrary result. "Hydro Constructors. Incorporated. supra, establishes that Schuelke's driving duties gave him interests in common with other drivers; it does not hold that those duties must predominate for inclusion in a drivers unit. The application of Berea Publishing, supra, was not discussed in that decision. But see W. C. Hargis & Son. Inc.. supra.