Olinkraft, Inc.

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Olinkraft, Inc.' and Miscellaneous Drivers & Helpers Union Local 610, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 14-RC-6102 October 28, 1969 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Terry M. Brooks, Hearing Officer. Following the hearing, this case was transferred to the National Labor Relations Board in Washington, D. C., pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended. Thereafter, the Petitioner and the Employer filed briefs. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, including the briefs, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved' claim to represent certain employees of the Employer 3. No question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act, for the following reasons: The Employer, a manufacturer and distributor of corrugated board boxes, maintains a plant at Berkeley, Missouri, where it employs about 115 production and maintenance employees, including 4 truckdrivers. All such employees have been continuously represented in a single unit by the Intervenor since its certification in 1961. The truckdrivers are engaged principally in delivering the Employer's finished products to the customers. They report to the shipping department foreman from whom they receive their daily working assignments. The finished products are generally delivered by lift truckdrivers to the shipping department, where the lift truckdriver-checkers handle the various orders and load the trailers. Some of the orders require hand stacking which is usually performed by a miscellaneous department laborer on loan to the shipping department. When a truckdriver receives his orders from the shipping foreman, he couples his The name of the Employer appears as amended at the hearing 'International Brotherhood of Pulp, Sulphite and Paper Mill Workers, Local Union No 531, AFL-CIO, herein called Intervenor, was permitted to intervene on the basis of a contractual interest tractor to the loaded trailer and proceeds to make the delivery to the customer. Unloading is generally done by the customer's employees, although the driver may help unload on those occasions when hand stacking of the load was initially required. On completion of the delivery, the driver returns to the plant for another load or calls the shipping foreman for further instructions. When not actually performing driving functions, the drivers at times perform other work at the plant as assigned by the shipping foreman. Such duties may involve cleaning out the trailers, cleaning up the shipping department area, driving fork lifts, assisting in the loading of customer's trucks, spotting trailers in and out of the dock, and occasionally handling way bills. The drivers frequently perform these nondriving functions for a substantial portion of the 20 percent of their work time in which they are not driving. All production and maintenance employees are hourly paid, including the drivers when they perform city driving, which involves trips within a radius of 50 miles from the plant. When the trips exceed this distance, the drivers are performing over-the-road driving and are paid on a mileage basis. All of the drivers involved herein perform both city driving and over-the-road driving.' The drivers are included on the plant seniority list and are entitled to receive benefits attributable to seniority, have the same use of plant facilities as the other employees, and have the right to enjoy the same fringe benefits as the other employees. Drivers may be occasionally assigned to other departments when business is slow, when there is absenteeism, or when a driver is unable to drive but is still capable of performing other duties around the plant. Vacancies for truckdrivers are filled by posting for bids with the most senior employees being selected. If there are no bids from either qualified senior employees or from other qualified employees, then the driver position can be filled by outside recruiting. Qualifications for drivers include passing a physical examination outlined under I.C.C. regulations, passing a written test under the same regulations, and passing a driving test. While the truckdrivers are the only employees regularly assigned to perform the Employer's driving function, other qualified employees are sometimes assigned to drive, and this usually occurs on occasions when a regular driver is either ill or on vacation. Applying the considerations set forth in Kalamazoo Paper Box Corporation, 136 NLRB 134, we are unable to conclude that the truckdrivers herein constitute a functionally distinct group with special interests sufficiently distinguishable from those of the Employer's other employees to warrant severing them from the existing unit. Thus, truckdrivers spend a substantial part of their regular work time performing work identical to that of 'One driver spends most of his time on over-the -road driving , another spends about a third of his time on this type of driving, and the other two do "some" over-the-road driving 179 NLRB No. 61 OLINKRAFT, INC. other employees, including fork lift drivers and the loader, whom the Petitioner does not seek to represent; they spend the great majority of their driving time on city driving which involves working hours somewhat comparable to those of other employees, and are compensated for such city driving by the same method as the other unit employees, and they otherwise enjoy the same fringe benefits and other employment benefits as do the other unit employees. The truckdrivers also report to and have the same supervision as other shipping department employees whom the Petitioner has not included in the requested unit All these factors point to the lack of separate interests of the truckdrivers and to the very substantial community of interests they share with other employees, as a result of their inclusion for a number of years in the overall unit. In these circumstances, we reject the Petitioner's claim that the truckdrivers are entitled to separate representation. Accordingly, we shall dismiss the petition.4 ORDER It is hereby ordered that the petition herein be, and it hereby is, dismissed. MEMBER FANNING, dissenting: This is a problem of severance of truckdrivers from a production and maintenance unit certified in 1961.5 It is before the Board for initial decision. The record gives a clear picture of the specific qualifications of the four employees involved and the distinct group interest which their assigned truck driving duties entail. I cannot agree with my colleagues that these drivers should be denied the opportunity to select separate representation if they wish it. My colleagues reach this result, they say, by applying the considerations of Kalamazoo, 136 NLRB 134. 1 participated with two of my colleagues in that majority decision It was our stated purpose to require an affirmative showing other than job classification before granting a separate unit to truckdrivers seeking severance. Automatic severance from established units was to be avoided. However, it was also our avowed purpose not to deny severance to functionally distinct groups of drivers. 'See Dura-Containers , Inc. 164 NLRB No 45, and Kalamazoo Paper Box Corporation, supra 'The original unit included no over-the road drivers These were added in 1968 when a wax impregnated box was developed for shipping poultry, for customers in Alabama and Arkansas Addenda were then executed to the Intervenor's contract to include over-the-road truckdrivers, as well as the additional production workers needed Plant employees and drivers were given an opportunity to qualify for these driving jobs, and did so Drivers who testified were not consulted on the terms of the 1968 addenda, which excluded over-the-road drivers from contract provisions on wages and shift differential , hours, overtime, and call-in and reporting pay , and provided a separate system of pay and allowances, they knew of no drivers on the Union's negotiating committee 415 The two Kalamazoo drivers denied severance by us spent only 50 percent of their time driving When not driving, they worked alongside, or in close proximity with, and performed exactly the same functions as other employees, production as well as shipping. Both production and shipping employees also made truck deliveries. This is not that sort of case. Adopting the Kalamazoo wording to characterize the 20 percent nondriving time here involved will not make it that kind of a case. These drivers have passed ICC physical and written examinations, obtained a chauffeur's license and passed the Employer's driver's test. All are required to do some long distance driving; two are specifically designated to do so. Such trips may involve tandem driving, with a sleeper cab as equipment. Approximately one out of 2 weeks they leave Sunday night at midnight when the plant is deserted In general, long hauls are scheduled to leave at such times as will meet the customer's requested arrival time. If the plant is not open at time of departure, the orders are placed in the cab. Drivers for "local" runs (within a 50-mile radius) regularly report 30 minutes earlier and are scheduled to finish work 1 hour earlier than other unit employees.6 The shipping superintendent testified for the Employer. Asked whether there were occasions when truckdrivers are employed at the plant he said "some", and whether "normally" there was enough work to keep the truckdrivers driving, he said "That is correct." By "some occasions" he meant. "if work is slow or in case of an injury or absenteeism", which he said "seldom" occurred. He also testified that the assignment of truckdrivers to the second shift (3:30 to midnight) occurred "very seldom", and that assigning drivers to billing work occurred "very seldom - lucky if once in 6 months." The drivers themselves described their nondriving time as consisting of "just waiting" for the next load and "occasionally" doing "other shipping work" such as moving trucks, loading a common carrier,' or sweeping out a trailer "once in a great while." One said he did hand loading "maybe once every four, five months"; the other, who did less over-the-road driving, that he hadn't done hand loading "within a year" but had driven a fork truck "say, once a month " Thus, so far as the record is concerned, there is no inconsistency between testimony for the Employer and for the Petitioner on this crucial issue of the amount of nondriving time and how it is spent. By no stretch of the imagination does it show regular and frequent interchange with other employees as in Kalamazoo, or regular performance 'This Berkeley , Missouri, plant is 15 miles from Illinois Destinations are generally within a radius of 150 miles, except to customers for the poultry box 'Thirty-three percent of the Employer 's product is shipped from Berkeley by common carrier 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of nondriving functions as in Dura-Containers, 164 NLRB No 45, in which I also participated.' So, we have here an operation which since 1968 employs four men specifically qualified to drive,' who spend 80 percent of their time away from the plant driving, regularly covering an area having a 150 mile radius, plus long distance hauls to Alabama and Arkansas, whose hours of work do not coincide with those of other unit employees, and who "normally" have enough driving to keep them busy all the time, away from the plant I can see no reason to deny them recognition as a functionally distinct group with overriding special interests, as the Kalamazoo guidelines envision. Drawing the decisional line tends to be complex, with either choice a difficult one. Here, by focus on sworn testimony, the choice is as simple as adding 2 and 2 I would grant these drivers a self-determination election. 'Dura-Containers' delivery area was within a 50 mile radius , nondriving time ranged from 25 to 35 percent and involved some production work 'These drivers require little direct supervision They are familiar with their destinations by reason of the custom character of the Employer's corrugated container business Sharing supervision with other shipping department employees is thus unnoteworthy It is notable , however, that when illness or vacation requires a substitute for them, this is accomplished by using a maintenance mechanic who qualified for the job of over-the-road driver but then decided against taking it Again, the shipping superintendent used the words "very seldom" in describing how often such substitution occurs