Interstate Brands Corp.

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Karl's Bakery-Division of Interstate Brands Corporation and Retail Clerks Union Local No. 1401, affiliated with the Retail Clerks International Association, AFL-CIO, Petitioner. Case 30- RC-2256 October 24, 1974 DECISION ON REVIEW By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 26, 1974, the Regional Director for Re- gion 30 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found appropriate and directed elections in two separate units, one at the Employer's Janesville, Wisconsin, location and the other at the Employer's Madison, Wisconsin, location, each unit consisting of "all full- time and regular part-time employees of the Employ- er excluding driver-salesmen, professional employ- ees, guards and supervisors as defined in the Act." Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Reg- ulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision, together with a supporting brief, contend- ing, inter alia, that the Regional Director erred in including in the units two depot workers at each of the above-described locations and thereby departed from Board precedent. By telegraphic order dated April 22, 1974, the Na- tional Labor Relations Board granted the Employer's request for review and stayed the election pending decision on review. Thereafter, the Employer filed a brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review and finds as follows: The Employer is a Delaware corporation engaged in the production, distribution, and sale of bakery products at facilities in the State of Wisconsin and other locations. At both the Janesville and Madison locations involved herein,' the Employer operates a retail thrift store, where it employs four clerks to sell its bakery products. Attached to each store is a depot from which the driver-salesmen distribute wholesale 1 The distance between the Janesville and Madison locations is approxi- mately 40-45 miles. bakery products.' At each location there are two em- ployees who perform ancillary maintenance and re- pair services at the depot. One of them at each loca- tion also regularly works as a driver-salesman for the Employer. The Employer argues that inclusion of these two employees in each of the units is improper because they lack a community of interest with the thrift store clerks. The record establishes that the four thrift store clerks at the Janesville location, which opens at 8 a.m., display and sell merchandise to customers, and check in the salesmen's money and returned mer- chandise. The clerks earn between $2 and $2.60 an hour and are supervised by the depot supervisor. Brewer works out of the Janesville location as a driv- er-salesman during the day and works from 6:30 p.m. to 8:30 p.m. at the depot filling the trucks with gaso- line and cleaning the depot floors. He earns $2.75 an hour for his evening duties.lowry, the other employ- ee at the depot, earns $3.80 an hour and works regu- larly from 9:30 p.m to 6:30 a.m. unloading and load- ing the trucks and making truck repairs. At the Madison thrift store, which opens at 9 a.m. during the week and 10 a.m. on Sunday, the four thrift store clerks earn between $2.25 and $2.35 an hour, are supervised by the depot supervisor, and perform the same functions as the clerks in Janes- ville. Peterson, one of the employees located there, works at the depot 5 days a week, approximately 4 hours a night, loading and unloading trucks; he earns $2.60 an hour. Oimen, a full-time driver-salesman during the day, washes the trucks, cleans the garage floors, and generally performs extra cleaning duties requested by the Employer. As indicated, the Employer contests the Regional Director's inclusion of the two employees performing depot functions at each location in the units with the thrift store clerks, contending they do not share a community of interest with the clerks. In addition, the Employer urges that Oimen is an independent contractor in performing these duties and should also be excluded on that basis. As found by the Regional Director, Oimen and Brewer are full-time driver- salesmen for the Employer and each is already repre- sented in a separate unit of drivers at his location. In addition to their route driving duties they perform certain tasks at the depots after completion of their regular workday for which they are separately com- pensated. Contrary to the Regional Director, inas- 2 The route sales drivers and sales supervisor at the Madison depot are represented by Drivers, Salesmen, Warehousemen, Milk Processors, Can- nery, Dairy Employees and Helpers Union, affiliated with the International Brotherhood of Teamsters , Local 695. The route sales drivers and sales supervisor at the Janesville depot are represented by General Drivers, Dairy Employees, and Helpers Union, affiliated with International Brotherhood of Teamsters, Local 579. 214 NLRB No. 25 MRS. KARL'S BAKERY 231 much as Oimen and Brewer are primarily employed as driver-salesmen for the Employer and are current- ly represented by other labor organizations, we shall exclude them from the units. With respect to the other depot employee at each location, we note that he and the thrift store clerks are under the supervision of the depot supervisor, and are subject to the same labor policies of the Em- ployer. Although the functions of the depot workers differ from those of the thrift store clerks and there is an absence of contact between them due to their varying hours of work, all of these employees per- form tasks essential to the operation of the Employer's depot facilities which serve as outlets for the sale and distribution of its bakery products. We find, therefore, contrary to the Employer's conten- tion, that the thrift store clerks and the depot worker at each location share a sufficient community of in- terest to warrant finding them to constitute an appro- priate unit. Moreover, to exclude the depot worker from each of these two units would leave him the sole unrepresented employee at his location.3 The depot worker at each location is therefore included in the units. Accordingly, we shall remand the case to the Re- gional Director 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 imme- diately preceding the date of issuance of this Deci- sion. [Excelsior footnote omitted from publication.] 3 Allen's Inc., 120 NLRB 1021, 1023 (1958).