Sonoco Products Co.

310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Downingtown Paper Co., A Division of Sonoco Products Company i and Local 384, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 4-RC-8959 July 29, 1971 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Joan F. Homer. Following the hearing, this case was transferred to the National Labor Relations Board in Washington, D.C., for decision, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended. Thereafter, the Petitioner, the Employer, and the Intervenor2 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 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. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to sever from the existing production and maintenance unit, currently repre- sented by the Intervenor, a unit of all over-the-road truckdrivers, excluding production and maintenance employees, utility and waste truck drivers, and relief drivers.3 Alternatively, the Petitioner would represent all truckdrivers if the Board finds such unit appropri- ate. The Employer and the Intervenor oppose the requested severance, on the grounds that the only 1 The name of the Employer appears as amended at the hearing. 2 United Papermakers and Paperworkers, AFL-CIO, and United Papermakers and Paperworkers, Local 414, AFL-CIO, herein called the Intervenor, was permitted to intervene on the basis of a current contract with the Employer There is no claim that this contract constitutes a bar. appropriate unit is -the- existing unit composed of all production and maintenance employees, and iriclud- ing•the,trucking.department employees., The Employer, located' in Downingtown, Pennsyl- vania, is engaged in the manufacture of paperboard and is a division of Sonoco Products Company, a South Carolina corporation engaged in the manufac- ture of paper and plastic products. The Employer employs approximately 250 employ- ees plus several categories of truckdrivers. There are approximately 14 over-the-road drivers who drive tractor-trailers and haul finished products from the Employer's plant to customer locations. They also back-haul raw materials, machinery, and equipment that are used in the production process, and they deliver to, and back-haul from, other Sonoco-owned paper plants. Approximately 90 percent of the trips made by the over-the-road drivers are nonlayover trips. On occasion, an over-the-road driver may make more than one trip in a day. There are two over-the- road drivers who are engaged in hauling fuel oil from a distributor to the plant. The Employer currently employs one relief driver who performs as a temporary fill-in for the over-the-road driver when needed, but routinely performs essentially the same duties as the drivers classified as utility drivers. There are four utility drivers who are engaged in the hauling of various materials between the various parts of the Employer's plants including warehouses. They also haul to and from customers' plants, suppliers, freight stations, and dumping areas. There is one employee in the classification of waste driver, who hauls rubbish and waste materials from the plant to the dump 4 All drivers, except for the over-the-road drivers, punch timeclocks and are paid on an hourly basis, as are the production and maintenance employees. Over-the-road drivers are paid on a mileage or trip rate, they are not paid for overtime, they are paid for "waiting time" and are given a motel allowance when necessary, and holiday pay for the over-the-road drivers is based on an average trip pay income unlike the holiday pay for other drivers and employees which is based on an hourly rate. Over-the-road drivers work no particular shift and average 50 to 55 hours a week, whereas the other drivers and employees work regular shifts averaging 48 to 54 hours per week. Unlike the other drivers and employees, the over-the-road drivers are required, by the United States Department of Transportation, to keep a logbook of their trips and their worktime, which cannot exceed a maximum of 60 hours in any 7-consecutive-day period. Although the 3 Petitioner amended its petition at the hearing. 4 The Employer states that when the present waste driver, an employee for approximately 42 years, retires , the classification of waste driver will be eliminated and the utility drivers will assume the duties formerly performed by the waste driver. 192 NLRB No. 42 DOWNINGTOWM PAPER CO. 311 Employer requires all of its employees to take physical examinations,, only the over-the-road drivers are required to meet the Department of Transportation requirements with-respect to physical examinations. The Employer makes a contribution on behalf of each employee to the pension fund,,according to a formula based on their hourly rate - of pay, whereas the contribution for the over-the-road drivers is based on an "hourly waiting time" rate. All drivers are assigned to the trucking department, which is a part of, a larger section called transportation and purchasing and includes, storeroom employees and skid lot personnel: The drivers and employees are supervised by a' manager, traffic manager, and dispatch supervisor. In view of the irregularity of their working hours, the over-the-road drivers often pick up their assignments in there individual lockers. The, orders are placed their by the dispatcher before he goes home at 5 p.m. Although other drivers may be supervised by a production or maintenance supervi- sor when they are temporarily assigned to those sections, the over-the-road driver is never supervised by other supervisors during his'normal tour of duty. There have been approximately four permanent job transfers from the production and maintenance section to the over-the-road driver positions. And some of these men permanently transferred back into the production and maintenance section after becom- ing disenchanted with the over-the-road driving. The over-the-road drivers do not load or unload their trailers at the plant but are called upon at times to help load or unload at their destinations. However, the other drivers load and unload their trucks at the plant. Although other drivers are assigned to production and maintenance- jobs when they are not performing driving functions, the over-the-road drivers are not assigned such jobs except during plant shutdown periods during the months of July and December. Other drivers in the trucking department are permit- ted to sign up for weekend overtime assignments in other departments. However, over-the-road truckdri- vers are not permitted to sign up for weekend overtime work, primarily because of the 'Department of Transportation regulation which limits their working time to a maximum of 60 on-the-job hours in any 7-consecutive-day period. The relief driver is the only driver qualified to replace an over-the-road driver, all other drivers are not qualified to fill in for the over-the-road drivers. However, as the job of replacement for the over-the- road driver occurs only sporadically, the relief driver also shuttles trailers all over the plant. Seniority is figured for each employee on a plantwide basis, department basis such as trucking department, and on a job classification basis. As a result of plantwide seniority, there have been in- stances wherein over-the-road drivers have "bumped" into a production and maintenance position based on seniority. There is evidence that on one occasion during the July 1970 shutdown, there was reduced work in the trucking department and an individual did use_ his plant seniority to work in the maintenance department. However, over-the-road vacancies are filled in the order of progression first by the relief driver, even though he is less senior than someone in the plant, and then by the utility driver, if qualified, and then by other employees throughout the plant, if qualified. Openings for oil truck drivers are offered first to the other over-the-road drivers and seniority in that group prevails. Clearly, plantwide seniority is not controlling in filling the over-the-road job openings or, in filling the oil truck driver classification. Although transfers have occurred from the pro- duction and maintenance departments to the trucking department, most of the transfers have-been on a permanent basis to the trucking department, with a dearth of transfers from the over-the-road classifica- tion to production and maintenance jobs. The special qualifications required by over-the-road drivers nec- essarily limits the amount of interchange with other drivers and with production and maintenance jobs. After an election at the plant in September-1943, the Board certified the United Paper Novelty and Toy Workers as representative of all of Employer's employees in a production and maintenance unit, including truckdrivers. In 1945, the union changed its name to United Papermakers and Paperworkers, the Intervenor herein.5 The Intervenor has continued to bargain for all employees including, _truckdrivers. Prior to 1955, the drivers were classified as heavy truck driver, tractor-trailer driver, and light truck driver. After 1955, the plant established new driver classifications; i.e., utility truck driver and waste truck driver. Prior to the fall of 1968, the Downingtown Paper Company had contracted out all of its long-distance hauling. All of its short-distance hauling of finished products to customers was performed by its utility drivers. When Sonoco Products Company purchased Downingtown, Downingtown adopted Sonoco's poli- cy of employing its over-the-road drivers, and Downingtown created an employee classification of over-the-road driver. The Downingtown plant is' but one of several paper plants owned "and operated by Sonoco. There are two plants in Massachusetts, one plant in New Jersey, two plants in Pennsylvania, one in Virginia, and one in California. These plants are 3 The number of the local, 414, was retained. Huston Matson, who is a 414 in 1943, and has continued in that position, except for a period of millwright in the maintenance department , was elected president of local illness, until the present time. 312 DECISIONS OF NATIONALL,LABOR RELATIONS BOARD operated as -part of_an interconnected chain in that 'a large' . amount of ..the deliveries of finished, paper products, by the Downingtown over=the -road drivers are to other Sonora plants; and, a significant amount ' of, back-hauls of raw, material's are made from these` plants. 'Rather than employ, drivers from the outside to-fill' its overthe-road,classification, Downingtown fo1=_ lowed' a,policy `of promoting employees from existing positions' ithin -th'e plant.' New employees were to be hired 'to fill the over the-road job classification only as a last resort. A'lsocreated at this tune was ^ the new classification of relief driver This job was created, as an intermediate°step"between` utility, driver and over- the-road driver. oThe relief driver was to perform as, a temporary , fill-in .for the 'over-the-road,driver when needed, but asI a, matter of routine would perform essen`tially 'the same duties as_the utility. driver. The over-the-road driver classification and the relief driver classification were placed within the- already existing .trucking department,, which included the - waste driver and the utility drivers. The, Inter-venor , was- notified of Downingtown',s decision and-,it commenced bargaining on behalf of the, employees who, would,fill the new classifications. On ,November , 13, 1968, , the negotiations resulted in the execution of a supplemental agreement covering the over-the-road ' drivers and' relief 'drivers. This supplemental , agreement was incorporated- into the, terms'of the then current labor, agreement covering the, other drivers and, production' and maintenance employees. Follwing the execution of the supplemental agree- ment, the Employer notified employees of 'their opportunity, to bid 'on openings ;in the'over-the=road classification. The openings were offered first to the drivers in the trucking department ' and then to employees plantwide . Many employees with jobs in the plant ' bid - on ' the openings . Of the first five employees selected for the new classification, four were promoted`fromproduction jobs within the plant., When the Employer's need for'over-the-'road drivers' increased additional openings were posted, and when possible these openings were filled by promoting incumbent employees from other driver positions or production jobs within the plant . On at least two, occasions, ,the ,openings , were advertised prior, to the Employer's obtaining ,a vehicle for the employee e to drive.' When this, '.occurred, thek job applicant was offered. a,production job in the plant or in another driving,^capacityy until the truck was acquired. Atthe time it established . classifications, the Employer assertedly put into operation a plan of progression 6 Wright City Display Manufacturing Company, 183 NLRB'No. 86. whereby' employees in'the trucking department would advance from utility driver to over-the=road driver.-, ,While ,the record does-indicate that there is a long bargaining history , between the Employer; and the Intervenor covering the employees and then drivers, except for , over-the-road drivers who were not; employed until `January ' 1'969, and jthat the 'over-the ' road drivers do share'similar benefits , and they, have been represented by the 'Intervenor, these ' factors alone do not , preclude ' severing the'' over-the-road truckdrivers from the existing unit, where, as here, the over-the-road drivers share=a:community- of interests separate and apart from' the ' other drivers 'and employees. A careful .evaluation of the evidence ,convinces; us that 'the over-the-road' drivers -spend most of their working time away from the plant, do no plant work, do not load or unload their trucks at the plant, and` do not interchange with 'other drivers or production and maintenance employees. ,Thee basis for compensation for over-the-'road drivers differs from-that of other employees;` and they work different ,hours and are not permitted, to.,perform the -overtime Work which is available to other drivers and production and mainte- nance employees. Over-the-road drivers do not work in other departments or for supervisors other than those in the transportation, and purchasing;depart- ment, , unlike ,other drivers ,, and production ' and maintenance employees, and therefore their contact with the plant employees is minimal :, Over-the-road drivers musts undergo more stringent physical exami- nations in order to meet the health requirements^of the Department of Transportation. And the Employer concedes that presently, only the relief .driver is qualified too become an over-the-road-,driver. In view of ;the above, we find that the 14 over-the- road drivers, constitute a homogeneous, functionally distinct group such as the Board has traditionally, accorded the, right of self-determination , notwith- standing a, history of bargaining onta broaden basis.6 In, addition, the,parties stipulated,- and.we find; that the. Petitioner is a union which has, historically represented truckdrivers. We, find, therefore,-.that , the Employer's over-the-road , truckdriversmay, if they so desire, constitute a, separate appropriate unit for the purposes of collective bargaining, and we shall therefore direct,an election among, the employees in the following voting group: . , Allover-the-road truckdriver-s'of the Employer at -its,-,plant at Downingtown, Pennsylvania,, but excluding all other , drivers,. employees, and super- visors as defined by the Act. " We shall make no final unit'determination "at this time, but shall be guided in part by the desires of the DOWNINGTOW ,M PAPER CO. 313 employees as expressed in the election hereinafter directed. If a majority vote for the Petitioner, they will be taken to have indicated their desire to constitute a separate bargaining unit, and the Regional Director conducting the election will issue a Certification of Representatives -to the Petitioner for the employees in the group described above, which the Board, in such circumstances, finds to be appropriatefor the purpos- 7 In order to assure that all eligible voters may have the oportumty to be, informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which, may be used to communicate with them. Excelsior Underwear Inc., 156 NLRB 1236; N-LR.B_v. Wyman-Gordon Co, 394 U.S 759. Accordingly, it is hereby- directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed es, of collective bargaining.,., In _the event that a majority do not vote for the-Petitioner, these employ- ees shall remain a part of the existing; ,unit and the Regional Director will issue a Certification of Results of Election to such effect. [Direction of Election7 omitted from publication.] by the Employer with the Regional Director for Region 4 within 7 days of the date of this Decision and Direction of Election . The Regional Director shall make the 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 election whenever proper objections are filed. -