Wilson Engraving Co.

WILSON ENGRAVING COMPANY, INC. Wilson Engraving Company, Inc. and General Driv- ers, Warehousemen and Helpers, Local Union 745, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 16- RC-7898 September 26, 1980 DECISION ON REVIEW, ORDER, AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 13, 1979, the Regional Director for Region 16 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which he found a unit of city drivers comprising the six em- ployees sought by the Petitioner to be appropriate. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer timely filed a request for review of the Regional Director's Decision alleging that he erroneously excluded eight dual-function employees from the unit of city drivers. By telegraphic order dated May 7, 1979, the re- quest for review was granted. Pursuant to the Board's procedures, the election was held on May 8, 1979, and the ballots were impounded pending the Board's Decision on Review. The Petitioner filed a brief on review in support of the Regional Director's unit finding. 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, including the Petitioner's brief on review, and makes the following findings: The Employer is a Texas corporation engaged in the manufacture and sale of photographic plates and color separations for the printing industry at its Dallas, Texas, facility involved herein. It has six radio-equipped vehicles for deliveries and pickups which are assigned to six individuals employed principally as drivers.' These six employees are su- pervised by Homer Green, a corporate official who performs as dispatcher until 3 p.m. each day. The record reveals that the aforementioned drivers are also assigned to nondriving duties. 2 I Employees Daniels, Geaslin, Lyons, McClung, Pollard, and Thomas were found by the Regional Director to comprise the drivers' unit, con- trary to the Employer's contention that it regularly utilizes 14 employees as drivers. For example, Daniels regularly distributes incoming items to certain employees who work in upstairs offices and on occasion he performs pro- duction-type work such as removing tops from magnesium plates; Geaslin wraps packages and he and McClung help out in the production shop; 252 NLRB No. 48 With respect to eight other employees whose unit placement is in dispute, the record testimony discloses that all but one3 punch the timeclock, are hourly rated, and have the same fringe benefits as the included drivers. Most were hired and princi- pally employed as city drivers and subsequently as- signed to their current nondriving duties. The undisputed evidence pertaining to the al- leged dual-function employees is as follows: Dane Hatchett prepares and wraps out-of-town orders close to the drivers' dispatch desk. He also makes deliveries and pickups every day which comprise 50 to 65 percent of his work. Tenny Jones writes customer order production tickets and follows the work through the shop in addition to preparing and wrapping packages in the shipping department like Hatchett. Jones also spends between a quarter and a third of his time making regular pickups and deliveries, and is given preference over some regular drivers with respect to assignments in southwest Dallas and Arlington because of his familiarity with those areas. Jay Bullard begins work at noon, and divides his first 3 hours between preparing packages for ship- ment and making regular driver deliveries, the latter occupying approximately 25 percent of his worktime. From 3 to 7 p.m., Bullard works in relief of Homer Green, and in such capacity Bul- lard exercises some discretion in making driver as- signments and in directing drivers. However, con- trary to the Petitioner, the record shows that Bul- lard lacks hiring or firing authority, and is other- wise silent as to whether Bullard possesses any other indicia of supervisory authority. Charles Evert reports to Homer Green, and pri- marily performs general maintenance and cleanup duties, including taking company vehicles to a garage for repairs. He drives a company pickup truck to make daily pickups from the post office, bus station, and the Purolator Company. In addi- tion, all heavy deliveries to customers are made by Evertt in his truck, sometimes with the assistance of a regular driver. These driving duties account for about 35 percent of Evertt's worktime. Connie Fagan performed regular delivery driver duties until a few months before the instant hearing when she was given a pay increase and reassigned to clerical work in the Employer's upstairs office under office supervision. She continues to be called upon for pickup and delivery driving on an "as Lyons occasionally relieves the dispatcher for brief intervals; and all of the regular drivers except for Thomas, the most recent hire. may be as- signed cleanup chores or other work whenever they are not driving. s Scott Wilpitz, unlike the others, is salaried and was hired specifically to work in sales on the account of one of the Employer's best customers. 333 DECISIONS OF NATIONAL LABOR RELATIONS BOARD needed" basis which averages out to two or three times a day. Allen Greer similarly was promoted and trained to fill a vacant position involving handling custom- er "U.P.C." (unit pricing code) orders in an office and under separate supervision. Although he is no longer dispatched every day, his driving assign- ments occupy approximately 25 percent of his hours. Richard Pradarits was reassigned from regular city driving to assist a salesman in an upstairs office with one of the biggest customer accounts. His new position requires Pradarits to make special de- liveries to his customer. Apart from his sales-relat- ed work, he is dispatched for regular pickups and deliveries approximately 40 percent of the time. Scott Wilpitz, as previously noted, was hired as a salesman in charge of a large customer account, and is salaried. Like Pradarits, he makes special de- liveries to his own customer. He too is dispatched to make regular deliveries, but only when no one else is available and such driving assignments ac- count for not over 15 or 20 percent of Wilpitz' worktime. The Regional Director excluded the aforesaid employees from the unit based on his findings that their driving function neither occupies a substantial portion of their worktime nor shows any regular- ity, pattern, or consistent schedule. We disagree. For the reasons set forth below, we find that these dual-function employees, except as noted herein- after, have a sufficient community of interest with unit employees to warrant their inclusion in the unit. It is well established that the Board4 may in- clude a dual-function employee in a unit if he per- forms duties similar to those of unit employees in sufficient degree to demonstrate that he has a sub- stantial interest in the unit's wages, hours, and working conditions. Here, we find that employees Hatchett, Evertt, and Pradarits perform similar de- livery and pickups as included drivers during sub- stantial portions of their working time, or approxi- mately 50, 40, and 35 percent, respectively. Also, like unit employees, they are hourly paid, share the same fringe benefits, and are subject to the same supervision and working conditions while driving. We further note the record evidence showing that they and the included drivers have substantial con- tacts during their respective nondriving work as- signments. Accordingly, we conclude that the above-named employees share a community of in- terest with the already included drivers, and we shall therefore include them in the unit of city driv- ers. 4 Berea Publishing Company, 140 NLRB 516 (1963). On the other hand, the evidence reveals that em- ployees Greer and Jones share a lesser community of interest with the unit drivers insofar as their driving duties occupy only approximately 25 per- cent of their working time. Even more markedly differing interests from those of the drivers are en- joyed by Bullard, Wilpitz, and Fagan. Bullard, as noted, acts as a substitute dispatcher during half or more of his work hours, which are from noon to 7 p.m., and he drives no more than approximately 25 percent of his time. Wilpitz is the only salaried em- ployee in issue, and his driving is limited to times when no one else is available to drive, which amounts to no more than 15 to 205 percent of his time. Lastly, Fagan has been assigned to the Em- ployer's office to perform office clerical duties during most of her working day. She also drives only approximately 20 percent of her time. We find from the foregoing that Greer and Jones lack a sufficient community of interest with the city drivers to warrant their inclusion in the unit, and further, that Bullard, Wilpitz, and Fagan have markedly differing interests from the unit employ- ees, and accordingly, we shall exclude the aforesaid employees from the unit of city drivers. Inasmuch as we have found that the unit must be enlarged to include employees Hatchett, Evertt, and Pradarits who we have found share a common community of interest with the unit employees, we shall order that the election conducted on May 8, 1979, be vacated and shall direct an election in the unit found appropriate herein, as described below: 6 All city drivers, including the dual-function employees who spend a third of their time driving, employed at the Employer's place of business located at 1702 South Central Ex- pressway, Dallas, Texas, excluding all other employees, office clerical employees, guards, watchmen and supervisors as defined in the Act. ORDER It is hereby ordered that the election conducted on May 8, 1979, be, and it hereby is, vacated. v Although it is not clear on the record, this figure may also include Wilpitz' driving which is incidental to his predominant salesman's duties. See W. C. Hargis & Sons Inc., 164 NLRB 1042, 1047-48 (1967). ^ The Petitioner shall be permitted to withdraw its petition without prejudice upon written notice to the Regional Director for Region 16 within 10 days from the date of this Decision on Review, Order, and Di- rection of Election. Independent Linen Service Company of Mississippi, 122 NLRB 1002 (1959). Further, inasmuch as the unit found appropriate herein is larger than the unit sought by the Petitioner, the holding of an election will be conditioned upon a demonstration by the Petitioner. within 10 days from the date hereof, that it has an adequate showing of interest in the broader unit found appropriate. 334 WILSON ENGRAVING COMPANY, INC. [Direction of Election 7 omitted from publica- tion.] MEMBER JENKINS, dissenting: I would affirm the Regional Director's Direction of Election in the requested unit of six city drivers which constitute an appropriate unit," and find that the Employer has failed to supply any evidentiary foundation for its contention that the Regional Di- rector erroneously declined to expand the unit by including eight production and clerical employees who also drive on an "as needed" basis.9 Nor can I subscribe to my colleagues' patchwork modifica- tion of the unit composition, in these circum- stances, by including three (Hatchett, Evertt, and Pradarits) of the eight employees meeting the dual- function criteria of Berea Publishing Company. The facts show that the six city drivers regularly make deliveries in the Employer's six radio- equipped delivery vehicles under the supervision of dispatcher Homer Green. They also assist in var- ious nondriving chores to fill in their time between deliveries. On the other hand, the eight employees whose inclusion is sought by the Employer are en- gaged principally in sales, production, or office or plant clerical functions, except for one substitute dispatcher and another who is in charge of mainte- nance and janitorial work. These alleged dual-func- tion employees are separately supervised during their nondriving work" and are, for the most part, employed in separate areas of the Employer's premises-half of them, including Pradarits, are as- signed to offices on the second floor. I [Excelsior footnote omitted from publication.] * See The Salvation Army. Inc., 225 NLRB 406 (1976). 9 The Employer's bare asertion that the eight disputed employees' duties are too fragmented to permit their representation otherwise has no evidentiary support in this record. In fact, the record is devoid of any evidence regarding the numbers and types of any other of the Employ- er's employees, or of such other employees' shared or separate communi- ty of interests vsF-a-vis the eight employees in issue herein. 'o 140 NLRB 516. l" Testimonial evidence referred to specific, separate supervision of some of the disputed employees, was silent as to others, and, at most, in- dicated that all are under common supervision while driving. My colleagues point out that all 14 employees, except for Wilpitz, are hourly paid and were for- merly, if not presently, classified as drivers; share the same general benefits and working conditions; and are under common supervision while driving. However, their inclusion of employees Hatchett, Evertt, and Pradarits only is apparently predicated on the said employees' higher percentages of driv- ing time, which approximate 50, 35, and 40, respec- tively, as manifesting their "sufficient interest in the unit's conditions of employment." Such undue em- phasis on mere percentages for purposes of unit placement appears to have produced some bizarre results.' 2 Thus, the majority decision includes Hat- chett but excludes Greer although the 25-percent driving time by full-timer Greer is comparable to the 50-percent driving time of part-timer Hatchett. Likewise, although salesmen Pradarits and Wilpitz are both separately supervised and situated in up- stairs offices, Pradarits has been included while Wilpitz, who is salaried, has been excluded. Simi- larly, included employee Event divides his ap- proximately 35-percent driving chores between city deliveries and his own routine mail and package pickup whereas part-timer Jones has been excluded despite the fact that he spends a third to a quarter of his hours engaged in priority city driving assign- ments to southwest Dallas because of his great fa- miliarity with that area. The foregoing inconsistent unit placements by my colleagues serve merely to underscore on my own view of the correctness of the Regional Direc- tor's Direction of Election in the petitioned- for drivers' unit herein, particularly inasmuch as the Employer has failed to produce any evidence war- ranting expansion of the said unit. I Although the Employer's dispatch sheets could presumably have es- tablished with some precision the extent to which disputed employees engage in unit work, the only evidence adduced with respect thereto was general testimony regarding estimated percentages of time spent in driv- ing, and a copy of a letter from the Employer to a customer listing the names of 10 drivers (including Bullard, Jones, and Hatchett) who would be making deliveries to that customer's premises. 335