Fleming Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1987

282 N.L.R.B. 1030 (N.L.R.B. 1987)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fleming Industries , Inc. and Building Material and
Dump Truck Drivers, Local 420, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America . Case 31-CA-
15467
Teamsters), alleges that Fleming Industries, Inc. (Re-
spondent or the Company) violated Section 8(a)(5) and
(1) of the National Labor Relations Act.
Issue
5 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 1 October 1986 Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Fleming In-
dustries, Inc., Los Angeles, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
' Contrary to the Respondent's submission, Wilson Engraving Co., 252
NLRB 333 (1980), does not dictate an interpretation of Berea Publishing
Co., 140 NLRB 516 (1963), that would preclude including dual-function
employees in a particular unit unless community-of-interest factors, in ad-
dition to their performance of a substantial amount of unit work, were
shown Although additional factors were mentioned in Wilson Engraving,
the Board, citing Berea, expressly described its policy as permitting inclu-
sion of a dual-function employee in a unit "if he performs duties similar
to those of unit employees in sufficient degree to demonstrate that he has
a substantial interest in the unit's wages, hours, and working conditions."
252 NLRB at 334 The judge properly applied Berea here.
Raymond M. Norton, Esq., for the General Counsel.
James C Romo and Marilou F. Mirkovich, Esqs. (Atkin-
son, Andelson, Loya, Ruud & Romo), of Cerritos, Cali-
fornia, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
This case was tried in Los Angeles, California, on July
15, 1986. The complaint, dated May 28, 1986, which was
based on a charge filed on December 6, 1985, by Build-
ing Material and Dump Truck Drivers, Local 420, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America (the Union or the
The Company refused to bargain with the Union after
the expiration of a collective-bargaining agreement and
took the position that no bargaining was required be-
cause there was only one person remaining in the unit.
The primary issue is whether or not that contention is
justified.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. A
brief was filed on behalf of the Company and a memo-
randum supplementing an oral argument was filed by the
General Counsel. Both have been carefully considered.
On the entire record' of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. JURISDICTION
The Company, a California corporation with an office
and principal place of business in Los Angeles, Califor-
nia, is engaged in the sale of lumber and related products
on a retail and nonretail basis. The Company annually
purchases and receives goods or services valued in
excess of $50,000 directly from suppliers located outside
of California and annually derives gross revenues in
excess of $500,000. The Company is an employer ' en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company operates a lumberyard. For many years
it had collective-bargaining relationships with two
unions. The Teamsters (the Charging Party in this case)
was one of those unions. The last collective-bargaining
agreement between the Company and the Teamsters was
effective by its terms from July 1, 1984, until June 30,
1985. It covered a bargaining unit of drivers. The collec-
tive-bargaining agreement described the unit in terms of
drivers in specific driver-classifications set forth therein.
The complaint alleged, the answer as amended admitted,
and I find that an appropriate bargaining unit was:
All truck drivers employed by Respondent at its
Los Angeles, California, facility, excluding all other
employees, professional employees, guards and su-
pervisors as defined in the Act.
' The unopposed motion of the General Counsel to correct the record
is granted That motion has been added to G C Exh 5
282 NLRB No. 132
FLEMING INDUSTRIES 1031
Though the contract contained provisions that gave bar-
gaining unit employees preference for dispatch 'over
"outside truckers" and limited the Company's right to
contract out work, there was no provision specifically
dealing with the situation where the Company assigned
driving work to its own employees who were not in the
drivers' unit.
The Company had and still has a collective-bargaining
relationship with Lumber and Sawmill Workers Union
Local No. 2288 and the Los Angeles County District
Council of Carpenters of the United Brotherhood of Car-
penters and Joiners of America, AFL-CIO (the Carpen-
ters). The contract between the Company and the Car-
penters, which has now been renegotiated, was effective
by its terms from July 1, 1984, until June 30, 1985. That
contract also described the bargaining unit in terms of
various job classifications. There were 52 classifications
listed. They included such titles as lumber handler, cabi-
net maker, and lumber clerk. Basically the classifications
were those of nondrivers who would customarily work
in the lumberyard. Employees in the Carpenters' unit are
referred to as yardmen. According to the credible testi-
mony of the Company's vice president and general man-
ager, Jack Dempster, such tasks as waiting on customers,
driving forklifts, and building loads were covered by the
Carpenters' contract. Though the job classifications that
comprised the bargaining unit do not include that of
truckdriver, the contract does contain a clause that pro-
vides:
When members of Local 2288 [Carpenters] are
used as truck drivers, they shall be paid the truck
drivers rate of pay, unless their own rate of pay is
higher than that of the truck driver in which event
they shall retain the higher rate of pay.
The Company has often used yardmen to do driving
work. When it has done so, it has paid the drivers' rate
of pay but has made all fringe benefit contributions to
the Carpenters' benefit plans.
John J. Morse, a vice president and business represent-
ative of the Teamsters, testified that there is an oral
agreement between the Carpenters and the Teamsters
that'allows carpenter and teamster employees to do each
other's work in emergency situations when all the regu-
lar employees are working. He averred that carpenters
are,allowed to drive trucks when the need arises during
vacation time or when there is an excess of work. Jack
Dempster, the Company's vice president and general
manager, testified that the provision in the Carpenters'
contract relating to yardmen doing, driving work is wide-
spread in the industry, that carpenters do drive trucks,
and that situation is not limited to fill in, vacation work,
or emergency situations. In that regard the testimony of
both Morse and Dempster was credible. Morse's testimo-
ny related to an agreement between the Teamsters and
the Carpenters under which drivers and yardmen could
fill in for each other when a special need arose. Demp-
ster's testimony related to his observation of the actual
practice under which the Company in fact did assign
yardmen to ,drivers" work without any "special need"
and without any protest from the Teamsters.2
Company records indicate that many deliveries were
made by yardmen. John Ruiz was concededly in the
drivers' unit. Raymond Ramirez was-also in the drivers'
unit at least until November 1984 when he ]became a dis-
patcher for the Company.3 Company records show that
for 1984 and 1985, in addition to Ruiz and Ramirez,
"other" employees were assigned to drive trucks and all
those "other" employees had been members of the Car-
penters' unit who were assigned to such truckdriving
tasks .4 Among the "others" were Gary Tinsley and
Arnold Dominguez , who the,General Counsel contends
should be included in,the Teamsters' unit.
The deliveries were as follows.
Month TotalDeliveries
*Other Percent toTotal
January 1984 ................... **
February .......................... 211 70 33
March .............................. 229 79 34
April ................................. 238 100 42
May .................................. 307 119 39
June .................................. 267 96 36
July .................................. 232 102 44
August ............................ 276 178 64
September......! ................. 204 140 69
October ............................ 255 158 62
November ........................ 241 163 68
December ....................... 212 143 67
January 1985 ................... 276 193 69
February .......................... 247 169 68
March .............................. 288 177 61
April ................................. 280 169 60
May .................................. 310 190 61
June .................................. 317 244 76
July .................................. 319 243 76
August ............................. 314 313 100
September ........................ 308 204 66
October ........................... 299 177 59
November ........................ 264 167 63
December ........................ 225 167 74
* Employees other than Ruiz or Ramirez.
** No records.
2 The complaint does not allege and the General Counsel does not
contend that the Company violated the Act by assigning yardmen to
drivers' work.
2 The Teamsters contends that Ramirez, as a dispatcher, is still in the
Teamsters' unit. The Company's general manager, Dempstei, testified
that the dispatcher assigns the deliveries to the drivers, takes care of the
equipment, and exercises day-to-day supervision over the employees
making deliveries. There was no other testimony concerning the dis-
patcher's duties and there is insufficient evidence on which to base'a de-
termination about whether the assignment of deliveries and the exercise
of day-to-day supervision involve the "use of independent judgment" so
as to make the dispatcher a supervisor within the. meaning of Section
2(11) of the Act However, Ramirez only rarely drove after he became a
dispatcher and nothing in the contract or in the unit description appears
to include dispatchers.
a In stipulating these records into evidence, the parties agreed that
"other" meant people who had been members, of the Carpenters' unit
who were assigned to drive trucks. The stipulation specifically left open
the question of which unit such employees were in when they were actu-
ally driving the trucks. ,
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company contends in substance that employees in
the Carpenters' unit gradually took over more and more
of the driving work until there was only one person
(Ruiz) remaining in the drivers' unit, and at that time the
Company no longer had an obligation to bargain with
the Teamsters. The General Counsel and the Charging
Party contend that there was always more than one em-
ployee-in the drivers' unit and that the Company's refus-
al to bargain with the Teamsters constituted a violation
of Section 8(a)(5) of the Act.
As is set forth in more detail below, in a letter dated
June 28, 1985, the Company took the position that there
was only one employee in the Teamsters' bargaining
unit. The Company admitted in its amended answer that
it has not recognized the Teamsters since August 30,
1985.
All parties agree that John Ruiz is a driver who at all
relevant times was in the drivers' unit.5 Beginning at
least in April 1985 two employees who had previously
been doing yard work in the Carpenters' bargaining unit
were assigned to drive trucks on a regular basis. They
were Gary Tinsley and Arnold Dominguez.
Raymond Ramirez, the Company's dispatcher, testified
that in early 1985 Ruiz, Tinsley, and Dominguez drove
on a regular basis, toward the middle of 1985 Ruiz and
Tinsley were the regular drivers, and toward the end of
that year it was busy and all three were regular drivers.
He averred that in early 1986 Ruiz and Dominguez were
driving on a regular basis. In addition he testified that at
times others filled in when the regular drivers were on
vacation or out sick.
Dempster acknowledged in his testimony that Tinsley
was the only employee who did class I driving of big
equipment. He also acknowledged that in 1985 Ruiz
drove all the time and in some months Tinsley and Do-
minguez drove over 50 percent of the time. On cross-ex-
amination, Dempster acknowledged that in 1985 Tinsley
and Dominguez spent about half of their time driving
trucks and the rest of their time waiting on trade, driving
forklifts, and building loads.
The company records support the conclusion that
Tinsley and Dominguez spent a substantial amount of
their time driving trucks. Those records show that Tins-
ley drove trucks at least6 the following number of hours:
April 1985-105-3/4 hours; May-112 hours; June-73-
1/4 hours; July-88 hours. For Dominguez the records
show: April-96 hours; May-93 hours; June-84-1/2
hours; July-81 hours.'
In June 1985 company dispatcher Ramirez told Team-
sters business representative Morse that the Company
needed to put on some steady truckdnvers and that they
were going to recruit those drivers from the existing
work force. He told Morse that the two individuals the
Company had chosen were Gary Tinsley and Arnold
Dominguez. He also said that those employees were car-
penters, that they were going to be driving full time, and
5 Ruiz did not do any driving in August 1985 because part of that time
he was on vacation and the other part he was out of work with a work-
man's compensation injury
6 The records repeatedly show "unknown" for additional hours that
were not reported.
7 The company records are set forth on a weekly basis in G C. 2.
that they needed to be transferred into the Teamsters
Union.8 Toward the latter part of June 1985 Morse went
to the company premises and gave membership applica-
tions to Tinsley and Dominguez. Tinsley signed the ap-
plication and was made a member of the Teamsters.
Prior to that time Tinsley had been a member of Team-
sters Local 389 and in July 1985 he was transferred to
the Teamsters Local 420. He paid a transfer fee of $21.50
and paid dues directly to the Teamsters without a check-
off. However, the Company paid dues to the Carpenters
on behalf of Tinsley in 1985.9 Even prior to that time
Morse had told Ramirez that Tinsley planned to transfer
his membership from Local 389 to the Teamsters Local
420 as of July 1985. Ruiz and dispatcher Ramirez were
already members of the Teamsters. Dominguez did not
sign a membership card.
B. The Conversations Between the Parties and the
Company's Withdrawal of Recognition
By letter dated April 8, 1985, the Teamsters advised
the Company of its desire to open the collective- bargain-
ing agreement for modification. Thereafter the Company
began negotiating with the Carpenters for a new agree-
ment . In the past the Company had bargained first with
the Carpenters and, when an agreement was reached, the
Company then made the same offer to the Teamsters. It
was the practice for Teamsters and Carpenters officials
to sit in on each other's negotiating sessions . On June 7,
1985, Teamsters business representative Morse attended a
negotiating session between the Company and the Car-
penters. The Company's attorney, Romo, and the Com-
pany's President, Sheffield, also attended that meeting.
During the course of that session Morse gave a set of
Teamsters proposals to Sheffield and Romo. They told
him that they would get back to him as soon as they fin-
ished negotiating with the Carpenters.' o
The collective-bargaining agreement between the
Company and the Teamsters expired by its terms on
June 30, 1985. About a week before that date, Morse
called Sheffield and told her that the contract was going
to run out. He said that he was sending her a letter and a
proposed extension to the agreement. He sent that letter
on July 1, 1985, and enclosed a "Letter of Agreement,"
which would have extended the contract on a day-to-day
basis for 30 days from June 30, 1985.
On June 27, 1985, Morse called Romo, but Romo was
not available. Romo returned the call on June 28, 1985,
9 These findings are based on the credible and uncontradicted testimo-
ny of Morse
9 Company president Kathleen Sheffield, in her testimony, acknowl-
edged that Tinsley told her that Morse had talked to him. She also
averred that she told Tinsley that she did not know anything about that
and that the Company was taking dues out of his checks for the Carpen-
ters.
10 These findings are based on the credited testimony of Morse Romo
testified that he did not recall seeing Morse at a meeting with the Car-
penters or receiving any proposals In this instance I believe that Morse's
recollection was more accurate than Romo's. Romo was busy negotiating
with the Carpenters. Morse's presence at that session was primarily as an
observer and there was no thought of beginning negotiations with him at
that time Romo's failure to recall his presence is therefore understand-
able It was, however, likely that Morse would remember his own pres-
ence there.
FLEMING INDUSTRIES 1033
but at that time Morse was not in . 11 On the same day
Romo wrote a letter to Morse that stated:
In view of the fact that there is only one employee
that remains in the bargaining unit, we will assume
that the Union will disclaim interest in representa-
tion. If this is not accurate, please contact me.
In early July 1985 Morse spoke to Sheffield about the
contract extension agreement , which she had not sent
back to him. She told Morse she had to talk to her attor-
ney, Romo. '
In mid-July 1985 Morse and Romo had a conversation
on the telephone. Consistent with his letter of June 28,
1985, Romo took the position that there was only one
person in the Teamsters' bargaining unit. Morse told
Romo that there were as many as four or five individuals
who were driving trucks and who should be represented
by the Teamsters. He specifically named John Ruiz,
Gary Tinsley, and Arnold Dominguez. 12 He also, said
that the Union was contending that dispatcher Ramirez
should be in the unit. Romo took the position that Rami-
rez was a supervisor and that Tinsley and Dominguez
were members of the Carpenters Union.13
After talking to Morse, Romo called Sheffield and
Dempster and reported to them what Morse had said.
They confirmed to Romo that Tinsley and Dominguez
were driving trucks covered by the Teamsters' contract
on a regular basis but said that, as far as they knew,
Tinsley and Dominguez were members of the Carpen-
ters.
Toward the, latter part of July 1985, Romo called
Manuel Lopez, business representative for the Carpen-
ters, and asked whether Tinsley and Dominguez were
still members of the Carpenters or whether they had
joined the Teamsters. Lopez said that he did not know
but that he would investigate and call back. Lopez did
not call back until the fall of 1985, which was after
Morse sent the August 30, 1985 letter discussed below.
Sometime before August 30, 1985, Romo attempted to
telephone Morse. However, Morse was on vacation and
another union representative with whom Romo tried
speak was not available. On August 30, 1985, Romo sent
Morse a letter that summarized their prior conversations
and concluded by stating that until the unit in question
was resolved the Company felt that "bargaining would
be inappropriate." The letter stated that two employees
who were members of the Carpenters' unit were in fact
driving vehicles covered by the Teamsters' contract.
11 These findings are based on the credited testimony of Romo Morse
testified that he had a conversation with Romo on June 27. Romo placed
that conversation in mid July 1985. There was little difference between
their testimony concerning the substance of the conversation. As to the
dates of the various incidents, I believe that Romo's recollection was
more accurate than Morse's.
18 In his initial testimony Morse averred that he told Romo that Ruiz,
Tinsley, and Dominguez were performing Teamsters' jurisdiction work
and were members of that Union Later in his testimony he averred that
he, was not sure he told Romo that Dominguez was a member of his
Union. I credit his assertion that he told Romo that Ruiz and Tinsley
were members. Morse also credibly testified that Romo told him that
Tinsley and Dominguez were members of the Carpenters.
13 These findings are based on a composite of the credible testimony of
Morse and Romo.
However, the. letter went on to take the position that
such a situation was a recognized practice that existed
for some time with neither the Teamsters or the Carpen-
ters questioning the use of Carpenters bargaining unit
members to operate vehicles. The letter reads in part:
Because the two employees in question continue to
perform work customarily performed by classifica-
tions within the bargaining unit represented by
Local 2288' [Carpenters], your effort to claim these
two employees as being within the bargaining unit
represented by Local 420 [Teamsters] attempts to
modify that bargaining unit. The Company is op-
posed to any such modification given the nature of
the work performed and the practice that has exist-
ed for several years. Consequently, until such time
as this matter is resolved, the Company feels bar-
gaining would be inappropriate.
Upon receiving Romo's letter, Morse called him.
Romo continued to maintain that there was only one
person in the unit and Morse disagreed. Morse said that
he would get in touch with his attorney.
On December 6, 1985, the Teamsters' filed a charge
against the Company alleging, inter alia, that it had re-
fused to bargain with the Teamsters in violation of Sec-
tion 8(a)(1) and (5) of the Act.
On January 10, 1986, Morse sent a letter to Sheffield
stating that unless the Company agreed to a date, time,
and place to begin negotiations, the Teamsters would
take .economic action against it.
Shortly after she received the January 10 letter, Shef-
field called Morse on the telephone and asked what eco-
nomic action he would take. He told her that there were
different types of picketing. There was a discussion about
whether the Teamsters had sufficient numbers to 'bargain
and he told her that in the Teamsters' opinion, there was
a sufficient number to' guarantee them the opportunity to
sit down and negotiate a contract.14
On January 17, 1986, Romo sent a telegram to Morse
stating that it remained the Company's, position that
14 These findings are based on the credited testimony of Morse Shef-
field testified that Morse said he knew what the NLRB rulings were, that
he had one member in attendance in the Union, that he wanted to make
the same deal as the Carpenters had been offered, that he would not
make the Company hire more people, that be just wanted one person in
attendance, and that he wanted what he had had at the yard for many
years. According to Sheffield, she told him that the Company did not
have to negotiate because there was only one member in attendance and
that he replied by saying that he understood that and that he had other
yards with only one Teamsters member where they had been able to
work it out I am unable to credit Sheffield's testimony with regard to
her assertion that Morse admitted in substance that there was only one
person in the Teamsters' unit.'As early as mid-July 1985 he had taken a
firm position that at a minimum Ruiz, Tinsley, and Dominguez were in
the Teamsters' bargaining unit Morse testified that he told Sheffield that
there was a sufficient number to guarantee the Teamsters an opportunity
to negotiate a contract and he, also averred that he did not recall any ref-
erence to the NLRB Sheffield made contemporary notes of the conver-
sations that tend to corroborate her testimony However, I believe that
the notes as well as her testimony at the trial are based on a confusion
between what her position was with regard to the bargaining unit and
what Morse actually told her. I credit Morse's version of the conversa-
tion and do not credit Sheffield's
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was no obligation to bargain over the one remain-
ing position in the bargaining unit.
C. Analysis and Conclusions
On the expiration of a collective-bargaining agreement
a union enjoys a presumption of continued majority
status . An employer who refuses to bargain with such a
union violates Section 8 (a)(5) of the Act unless the em-
ployer can rebut that presumption.'s
The presumption of continued majority may be rebut-
ted by a showing that the union in fact no longer re-
tained majority support or by a showing that the compa-
ny's refusal to bargain was based on a reasonably
grounded doubt as to the union's majority status.'6 In
the instant case the Company makes no claim that the
Union failed to represent a majority or that it had a rea-
sonably grounded doubt about the Union's majority
status.17 The Company's sole contention is that it was
justified in withdrawing recognition because the Team-
sters' bargaining unit had been reduced to one employee
(Ruiz). From its earliest decisions the Board has held
that bargaining is not required in a one-person unit.'8 If,
as contended by the Company, Ruiz was the only em-
ployee in the Teamsters' bargaining unit at the time rec-
ognition was withdrawn, then the complaint would have
to be dismissed. On the other hand, if, as contended by
the General Counsel, Tinsley and Dominguez were also
in the bargaining unit, then the withdrawal of recogni-
tion would constitute a refusal to bargain in violation of
Section 8(a)(5) of the Act.
The General Counsel's primary contention is that Ruiz
and Dominguez were dual-function employees who per-
formed enough Teamsters' bargaining unit work to be
considered within that bargaining unit.
At various times the Board has used different criteria
to evaluate whether a dual-function employee should be
within a particular bargaining unit. In Ocala Star Banner,
97 NLRB`384 (1951), the Board decided a case in which
an employee spent 25 hours a week doing bargaining
unit work and 35 hours a week in nonunit work. The
Board held that the employee should be included in the
bargaining unit because he regularly worked a substantial
number of hours in that unit doing the same work as the
other bargaining unit employees. It was held that he had
sufficient interest in the terms and conditions of employ-
ment within that unit to entitle him to take part in the
determination of the collective-bargaining representative.
In Denver-Colorado Springs-Pueblo Motor Way, 129
NLRB 1184 (1961), the Board reversed the Ocala Star
Banner decision and held that dual-function employees
should be included in a bargaining unit only when they
performed unit work more than 50 percent of the time.
15 Wilder Construction, 276 NLRB 977 (1985); Robertshaw Controls Co.,
263 NLRB 958 (1982), Bartenders Assn of Pocatello, 213 NLRB 651
(1974).
16 Robertshaw Controls Co., supra
17 It is noted that both Ruiz and Tinsley were members of the Team-
sters at the time the Company withdrew recognition It is also noted that
the Union's business representative, Morse , told the Company's attorney,
Romo, that they were members
16 Luchenback Steamship Co., 2 NLRB 192, 193 (1936), Owens-Corning
Fiberglass Corp, 140 NLRB 1323 (1963), Crescendo Broadcasting, 217
NLRB 697 (1975), Stern Made Dress Co., 218 NLRB 372 (1975)
Denver-Colorado Springs-Pueblo Motor Way was in turn
reversed by Berea Publishing Co., 140 NLRB 516 (1963),
in which the Board reinstated the principles of Ocala
Star Banner as controlling law.19 Under current Board
law the key issue is whether an employee has a sufficient
community of interest with the unit employees to be in-
cluded in the unit.20
In the instant case Ruiz, Tinsley, and Dominguez
drove on a regular basis prior to the time that the Com-
pany withdrew recognition. That driving work was
within the Teamsters' bargaining unit . Though Tinsley
and Dominguez had originally come from the Carpen-
ters' bargaining unit, that unit did not include any driv-
ing work. The Carpenters' bargaining unit consisted of
classifications set forth in its contract with the Company.
That contract specified 52 separate classifications in the
bargaining unit . None of them involved the driving of
trucks. The contract did provide that members of the
Carpenters would be paid the truckdrivers' rate of pay,
or their own if higher, if they were used as truckdrivers.
However, that clause simply permitted Carpenter's unit
,employees to be used in nonunit capacities and did•not in
itself remove classifications from the Teamsters' unit and
place them in the Carpenters' unit. No agreement be-
tween the Company and the Carpenters could alter the
composition of the Teamsters' bargaining ^ unit without
the agreement of the Teamsters.
In June 1985 company dispatcher Ramirez (who the
Company contended was a supervisor) told Teamsters'
business representative, Morse, that the Company needed
to put on some steady truckdrivers, that they were going
to recruit those drivers from the existing work force, and
that the two individuals who had been chosen were
Tinsley and Dominguez . He also told Morse that they
needed to be transferred into the Teamsters Union.
Morse solicited authorization cards from both Tinsley
and Dominguez , and Tinsley signed a card. When the
Company took the position that there was only one em-
ployee in the Teamsters' unit, Morse insisted that Tinsley
and Dominguez as well as Ruiz were in that unit. The
Company's attorney acknowledged that he checked with
company officials and found that Tinsley and Dominguez
were driving trucks covered by the Teamsters' contract
on a regular basis. The Company's vice, president and
general manager, Dempster, acknowledged in his testi-
1H See also Faulks Bros. Construction Co, 176 NLRB 324 (1969). In
NLRB v. Georgia, Florida, Alabama Transportation Co., 566 F.2d 520 (5th
Cir 1978), enf denied to 228 NLRB 1321 (1977), the court held that the
Board erred in giving too much significance to the amount of work per-
formed in the unit. There the Board had excluded an employee from a
unit of dock workers and local freight drivers where the employee
worked 18-20 percent in that unit and 80-82 percent in a different unit of
over-the-road drivers. The court pointed out that the key issue was com-
munity of interest and that time spent in a unit was only one indicia of
such community. In that case 18-20 percent unit work was enough for
inclusion.
20 When an election is to be conducted in two units and an employee
works in both units, that employee is to be placed in the 'unit in which
the greater community of interest lies In Nu-Life Spotless, Inc., 215
NLRB 357 (1974), the Board included'two employees in a drivers' unit
where one of the employees spent 60 percent of his time driving and the
other employee spent 50 percent, with the balance of the work in a pro-
duction and maintenance unit See also Mrs Karl's Bakery, 214 NLRB
230 (1974).
FLEMING INDUSTRIES 1035
mony that in some months Tinsley and 'Dominguez
drove over 50 percent of the time.
Although the company records introduced in evidence
do not show the total number of hours worked by Tins-
ley and Dominguez , these records do show that from
April through July 1985 Tinsley drove a truck at least
112 hours in 1 month and in other months not less than
73-1/4 hours , while Dominguez drove at least 96 hours
in I month and not less than 81 hours in other months.
As those records indicated "unknown" additional hours
when more time may have been spent driving , it appears
likely that both of those individuals spent a majority of
their time driving. In any event it certainly was a sub-
stantial amount of time. Once Tinsley and Dominguez
were assigned to work as regular drivers, their communi-
ty of interest was primarily with the drivers' unit and
only secondarily with the yardmen 's unit, in which their
work consisted of such tasks as waiting on trade, driving
forklifts , and building loads. I find that they had a suffi-
cient interest in the terms and conditions of employment
in the Teamsters ' unit to entitle them to take part in the
determination of the collective-bargaining representative
and that therefore they should be included in that unit.
Ocala Star Banner, supra.
The Company contends that Tinsley and Dominguez
should not be included in the Teamsters ' unit because the
Teamsters and the Laborers had an agreement under
which the members of one unit could do the work of the
other unit . I find that argument unconvincing . Morse tes-
tified that there was an oral agreement between the Car-
penters and the Teamsters that allowed each to do the
work of the other in emergency situations when all regu-
lar employees were working , Under that agreement car-
penters were allowed to drive trucks when the need
arose during vacation time or when there was an excess
of work . That was the only testimony with regard to
such an agreement . Dempster testified to the practice in
the industry and the practice for the Company. Howev-
er, he was not party to any agreement between the
Teamsters and the Carpenters and he was in no position
to testify about any agreement they had reached. His ob-
servation of the practice was that employees in the Car-
penters' unit did drive trucks and that the situation was
not limited to fill in, vacation work , or emergency situa-
tions. There is no evidence that the Teamsters protested
when substantial amounts of driving work were done by
Carpenters' unit employees That, however, does not
change the agreement between the Carpenters and the
Teamsters with regard to what work Carpenters' unit
employees should, do. Nor, in the entire context of this
case, can it fairly be said that the Teamsters agreed to a
procedure whereby the Company could unilaterally de-
stroy the Teamsters' bargaining unit by assigning the
work to employees in the Carpenters ' unit . Inclusion or
exclusion of Tinsley and Dominguez in the Teamsters'
unit must be decided on customary Board law. The
proposition that the Teamsters implicitly or explicitly
agreed to their exclusion from that unit is not support-
able.
The Company also contends that the Teamsters
waived any right it might have had to protest the exclu-
sion of Tinsley and Dominguez from the Teamsters' bar-
gaining- unit . That argument also is unconvincing.. When
Tinsley and Dominguez were assigned to drive trucks on
a regular basis , the Teamsters solicited membership from
them and Tinsley joined the Teamsters . When the Com-
pany claimed there was only one employee in the bar-
gaining unit , the Teamsters took the position that Tinsley
and Dominguez were in that unit . When the Company
withdrew recognition from the Teamsters , the Teamsters
filed a timely21 charge with the Board alleging an un-
lawful refusal to bargain.
There is no contention that the Company violated the
Act by its past practice of assigning yardmen to drive
trucks. The Teamsters' failure to object to that practice
may have been based on any one of a number of reasons,
one of which might have been an overwillingness to ac-
commodate the Company and the Carpenters . However,
I do not believe that the Teamsters ' conduct in that
regard can be equated with an agreement to change its
bargaining unit or with a waiver of its right to claim
Tinsley and Dominguez as members of its bargaining
unit when they were assigned to drive trucks on a regu-
lar basis. That assignment did not transfer driving work
from the Teamsters' unit to the Carpenters ' unit. It
merely placed Tinsley and Dominguez who had previ-
ously been in the Carpenters' unit , into the Teamsters'
unit.
In conclusion I find that Respondent 's contention that
there was only one person in the Teamsters ' unit at the
time it withdrew recognition from the Teamsters is with-
out substance and that at all times material herein, there
was more than one employee in that unit . As there was
an unrebutted presumption of continued majority status
that flowed from the recently expired contract, I find
that the Company refused to bargain in violation of Sec-
tion 8(a)(5) and (1) of the Act when it withdrew recogni-
tion from the Teamsters.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7 ) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit is appropriate for the purpose of
collective bargaining within the meaning of Section 9(b)
of the Act:
All truck drivers employed by the Company at its
Los Angeles , California, facility, excluding all other
employees , professional ' employees , guards and su-
pervisors as defined in the Act.
4. At all times material herein the Union was the ex-
clusive bargaining representative of the Company's em-
ployees in the above -described bargaining unit.
5. By withdrawing recognition on August 30, 1985,
and by refusing to recognize or bargain with the Union
since that date, the Company has violated Section 8(a)(5)
and (1 ) of the Act.
2 1 Timely under Sec 10(b) of the Act.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Company engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Company violated Section
8(a)(5) and (1) of the Act by unlawfully withdrawing
recognition from the Union and by refusing to bargain
with the Union as the exclusive representative of its em-
ployees in the aforesaid appropriate unit, I recommend
that the Company be ordered to recognize and, on re-
quest, to bargain in good faith with the Union as the ex-
clusive representative of its employees in that unit.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
(b) Post at its Los Angeles, California facility, copies
of the attached notice marked "Appendix."23 Copies of
the notice, on forms provided by the Regional Director
for Region 31, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
ORDER
The Company, Fleming Industries, Inc., Los Angeles,
California, its officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Refusing to recognize and bargain in good faith
with Building Material and Dump Truck Drivers, Local
420, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America as the exclusive
representative of its employees in the following bargain-
ing unit:
All truck drivers employed by the Company at its
Los Angeles, California, facility, excluding all other
employees, professional employees, guards and su-
pervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith
with said Union as the exclusive representative of its em-
ployees in the unit described above and, if an under-
standing is reached, embody such understanding in a
signed agreement.
22 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain in good
faith with Building Material and Dump Truck Drivers,
Local 420, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America as the
exclusive representative of our employees in the follow-
ing bargaining unit:
All truck drivers employed by our Company at our
Los Angeles, California, facility, excluding all other
employees, professional employees, guards and su-
pervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain in good
faith with said Union as the exclusive representative of
our employees in the unit described above and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
FLEMING INDUSTRIES, INC.