Cumberland Farms, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1967

167 N.L.R.B. 593 (N.L.R.B. 1967)

CUMBERLAND FARMS. INC. 593
Cumberland Farms, Inc. and Local 653, Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
1-CA-4821
September 26, 1967
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On January 11, 1966, the National Labor Rela-
tions Board issued its Decision and Order in the
above-entitled proceeding,' finding that the
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to recognize and bargain with the
Charging Union, as collective-bargaining represent-
ative of all production and maintenance em-
ployees, including truckdrivers, mechanics, and
loaders at Respondent's Canton, Massachusetts,
plant. Thereafter, the Board filed a petition with the
United States Court of Appeals for the First Circuit
for enforcement of its Order. The Court denied en-
forcement of the Board's Order and remanded the
case for an articulation of the basis for including
truckdrivers, mechanics, and loaders in the unit
found appropriate.2
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
powers in connection with this case to a three-
member panel.
In remanding the case for further consideration
of the unit issue, the court expressed doubt whether
the Board had properly applied the criteria set forth
in E.H. Koester Bakery Co., Inc., 136 NLRB 1006,
by including the above job categories in the same
unit with production and maintenance employees.
Thus, the court noted that there was inadequate ex-
plication of the showing of a community of interest,
as required by Koester Bakery, between
truckdrivers, mechanics, and loaders and other em-
ployees of the Respondent's Canton plant. We have
accepted the court's remand, and we have recon-
sidered our original decision in the instant case, the
earlier decision in the underlying representation
case, the criteria set forth in Koester Bakery, and
the entire record in these proceedings, and we find,
for the considerations set forth below, no com-
pelling reason to modify our unit holding.
The facts with respect to the unit, as well as to the
refusal to bargain, are not in dispute, and are sum-
marized below.
In April 1964, the Union filed a representation
petition seeking to represent a unit of production
and maintenance employees, including tank truck
and delivery truck drivers, mechanics, and loaders
at the Respondent's Canton, Massachusetts, plant.
The position of the Respondent at the hearing held
on the petition, and which it has maintained during
all subsequent proceedings, was that tank truck
drivers, the delivery truck drivers, the loaders, and
the mechanics are functionally engaged in the trans-
portation and the delivery of Respondent's
products and not with their production, have little
or no contact with the plant employees, and in other
ways have dissimilar interests from plant em-
ployees. The Respondent's contention was that the
facts herein are similar to the facts in Koester
Bakery, in which the Board excluded truckdrivers
and mechanics from a production and maintenance
unit, and that that case is dispositive of the instant
unit determination.
The Respondent is engaged in the processing,
packaging, and distribution of milk and related
products. There has been no prior history of collec-
tive bargaining. At the time of the representation
hearing, Respondent employed some 60 nonsuper-
visory-nonclerical employees. Among these were
7 to 9 tank truck drivers who make long-haul runs
to pick up milk at various depots in other States and
return it to the Canton plant for processing; approx-
imately 20 delivery truck drivers who deliver the
milk and other dairy products after processing to
local retail stores operated by Respondent's cor-
porate affiliates; 6 or 7 mechanics who work in a
garage at the Canton plant and apparently perform
repairs on both the tank and delivery trucks; and
the 8 to 10 loaders or platform men who load and
unload the trucks either alone or by assisting the
truckdrivers.3
The tank truck drivers are under the supervision
of the plant manager, who also supervises the in-
plant production employees, while the delivery
truck drivers, the mechanics, and the loaders are
each separately supervised by their own foreman.
The loaders, as well as some of the mechanics, are
hourly paid, as are the in-plant production em-
ployees. Other of the mechanics are paid a weekly
salary, and both the tank truck and the delivery
truck drivers are paid by the trip. All employees
share in similar vacation, holiday, Blue Cross, and
group insurance benefits.
While the trucks are normally loaded by the
loaders, the drivers sometimes load their own
trucks and occasionally fill in as loaders and assist
in the loading of trucks other than their own. On oc-
casion, there has been an interchange of work
between the loaders and the production employees,
and, during slack periods, loaders may make truck
runs. An unspecified number of drivers were previ-
ously employed in other classifications. The loaders
work on a platform some 50 to 100 feet from the in-
plant employees, and the mechanics work in a
156NLRB712
2 N L R B v Cumberland Farms , Inc , 370 F 2d 54 (C A 1)
3 Thus , the Respondent would have excluded more than half of the em-
ployees from the unit originally requested by the Union By the time the
election was conducted , the Respondent had closed its operation in
Woonsocket , Rhode Island , and had transferred many of the employees
who worked there to Canton, and the number of eligible voters at the date
of the election was about 100
167 NLRB No. 86
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separate garage area. The truckdrivers spend most
of their working time away from the plant. The tank
truck drivers and the delivery truck drivers ap-
parently have no contact with each other while at or
away from the plant, and there is no interchange of
duties between them.
Based essentially upon the above facts, the Re-
gional Director found that there was a substantial
community of interest between the truckdrivers,
mechanics, and loaders and the in-plant production
employees, found a broad production and main-
tenance unit including truckdrivers, mechanics, and
loaders appropriate, and directed an election
therein. Respondent's request for review of the Re-
gional Director' s Decision and Direction of Elec-
tion by the Board was granted, but limited to an un-
related issue, and the Regional Director's unit
determination was affirmed. After winning the en-
suing election , the Union, on November 5, 1964,
was certified as the exclusive bargaining represent-
ative of Respondent's employees in the above unit.
Respondent has concedely refused to bargain
with the Union, urging, as noted above, that the
Board erred in including truckdrivers, mechanics,
and loaders in the same unit with in-plant em-
ployees, contrary to the finding in Koester Bakery,
which the Respondent contends compels their ex-
clusion.
In Koester Bakery, the Board reexamined and
abandoned its earlier rigid practice of automatically
including truckdrivers in more comprehensive units
whenever the parties disagreed on their unit
placement.4 Finding that this blanket policy
amounted to a refusal to consider the unit place-
ment of drivers "on the merits," the Board an-
nounced in that case that it would "return to the ap-
proach of predicating their unit placement in each
case upon a determination of their community of in-
terest" with the employees in the more comprehen-
sive unit. The following guidelines were set forth as
the bases for making such determinations:
... (1) Whether [truckdrivers] have related or
diverse duties, mode of compensation, hours,
supervision, and other conditions of employ-
ment ; and (2) whether [truckdrivers] are en-
gaged in the same or related production
process or operation, or spend a substantial
portion of their time in such production or ad-
junct activities. If the interests shared with
4 See , e g, Thomas Electronics , Inc, 107 NLRB 614, and The Valley
of Virginia Cooperative Milk Producers Association , 127 N LRB 785
5 In making this finding , we are not holding that the broad unit herein
found appropriate is the only appropriate unit Respondent , on the other
hand, argues that under Koester the only appropriate unit for the plant em-
ployees must exclude the employees in question This is too rigid a read-
ing of Koester , as we pointed out in Marks Oxygen Company ofAlabama,
147 NLRB 228, issued approximately a month after the Regional
Director issued his Decision and Direction of Election , and approximate-
ly I week after the Board affirmed the Regional Director 's unit finding
herein Marks Oxygen specifically stated that Koester Bakery did not
overrule our well-settled policy that it is not essential that the unit sought
other employees is sufficient to warrant their
inclusion, we shall include the truckdrivers in
the more comprehensive unit. If, on the other
hand, truckdrivers are shown to have such a
diversity of interest from those of other em-
ployees as to negate any mutuality of interest
between the two groups, we shall exclude
them. [136 NLRB at 1011.]
We agree with the Respondent that certain facts
relied upon by the Board in Koester Bakery for ex-
cluding the truckdrivers in question are present
here. Thus, both the tank truck drivers and the
delivery truck drivers are functionally engaged in
the transportation, rather than the production, of
Respondent's products, and they, like the
mechanics and loaders, perform their duties outside
the plant. However, in our opinion, there are crucial
differences in this case which demonstrate a closer
tie between the in-plant employees and the em-
ployees in question . As noted above, the tank truck
drivers and the in-plant production employees share
common supervision. Some of the loaders and
mechanics receive the same mode of compensation
as the plant employees, and, on occasion, there has
been an interchange of work between the loaders
and production employees. The drivers sometimes
load their own trucks, and occasionally fill in as
loaders and assist in the loading of trucks other than
their own. During slack periods, loaders may make
truck runs. There is evidence of transfer; some of
the truckdrivers formerly worked in other classifi-
cations. In addition, all employees share in similar
vacation, holiday, and insurance benefits and plant
facilities. The drivers here, one group of whom
make long hauls to collect raw milk and bring it to
the processing plant, and the other group of whom
take the milk from the plant to the retail distribution
points, are in their function more closely related to
the production process than the sales function of
the Koester drivers.
On the basis of above facts and the entire record,
we cannot agree with the Respondent that the
truckdrivers are shown to have such a diversity of
interest from the in-plant employees as to negate
any mutuality of interest between the two groups.
We, therefore, reaffirm our finding that there is a
sufficient community of interest between the
truckdrivers and others on the one hand, and the in-
plant employees on the other, so as to warrant their
inclusion in a single overall unit.5 Accordingly, we
by the petitioning union be the most appropriate unit The Board further
noted that while Koester Bakery reversed the policy requiring the inclu-
sion of drivers in the broad production and maintenance unit when the
parties were in disagreement over their unit placement, it did not reverse
our existing principles that a community of interest exists between drivers
and production employees based upon " the flow of materials and products
into and out of the plant ," and that a plant wide unit is presumptively ap-
propriate Additionally, we note that the truckdrivers in Marks Oxygen
who were included in the production and maintenance unit, unlike here,
did not share some common supervision , mode of compensation, and
there was no showing that the truckdrivers in question formerly worked in
other classifications
CUMBERLAND FARMS, INC. 595
reaffirm our previous findings that Respondent en- SUPPLEMENTAL ORDER
gaged in unfair labor practices by failing to recog- On the basis of the foregoing, and on the basis of
nize and bargain with the Union as majority the record as a whole, the National Labor Relations
representative in the certified appropriate unit. Board reaffirms its Order of January 11, 1966, in
this proceeding.
310-5410-70-39