Home Depot USA, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1289 (N.L.R.B. 2000)

HOME DEPOT USA 1289
Home Depot USA, Inc. and Local 456, International
Brotherhood of Teamsters, AFL–CIO, Peti-
tioner. Case 2–RC–22092
August 25, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND BRAME
On July 21, 1999, the Acting Regional Director for Re-
gion 2 issued a Decision and Order dismissing petition find-
ing, inter alia, that the employees in the petitioned-for unit
of all full-time and regular part-time drivers and dispatchers
who drive do not share a distinct community of interest, and
therefore do not constitute an appropriate unit within the
meaning of the Act.1 Thereafter, on September 2, 1999, in
accordance with Section 102.67 of the National Labor Rela-
tions Board’s Rules and Regulations, the Petitioner filed a
timely request for review of the Acting Regional Director’s
determination. The Employer filed an opposition brief. By
order dated February 18, 2000, the Board granted the Peti-
tioner’s request for review. The Employer thereafter filed a
brief on review.
The National Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Having carefully examined the record and the Em-
ployer’s brief on review, we find, contrary to the Acting
Regional Director, that the Employer’s drivers and dis-
patchers who drive share a sufficient community of interest
to constitute an appropriate unit.
The Employer operates warehouse-style facilities in New
Rochelle and Bronx, New York, where it sells home im-
provement merchandise to the general public and commer-
cial entities. There are seven drivers and one dispatcher
who drives employed at the New Rochelle facility,2 and
four drivers and one dispatcher who does not drive em-
ployed at the Bronx facility. The organizational structure at
both stores is similar.3
Employees, including drivers, are paid on an hourly basis,
punch a timeclock, are eligible to participate in a number of
companywide benefit programs, and attend a 5-day new
employee orientation session, which includes 3 days of sales
training.4 All employees are invited to attend regular “prod-
uct knowledge” training sessions held by the Employer in
which employees learn how to use and install products sold
in the store. Drivers have attended such product knowledge
training sessions. Additionally, drivers are subject to the
same employee work rules, attend meetings and Employer-
sponsored social events with other employees, and use the
same parking, restroom, and break facilities.

1 The Petitioner sought to represent a unit of all full-time and regular
part-time drivers and dispatchers who drive employed at the Em-
ployer’s New Rochelle and Bronx, New York facilities. The unit was
amended by the Petitioner at the hearing to exclude those dispatchers
who do not drive. Specifically, the dispatcher at the Bronx facility does
not drive or deliver merchandise. Having found the composition of the
petitioned-for unit not appropriate, the Acting Regional Director did not
make a determination regarding whether the scope of the petitioned-for
unit, encompassing the New Rochelle and Bronx facilities, is appropri-
ate.
2 The New Rochelle store manager testified that the dispatcher is
considered a driver. The term “drivers” will be used to refer to the
drivers as well as the dispatcher who drives.
3 The Bronx and New Rochelle stores are part of a larger sales dis-
trict that also contains a facility in Elmont, New York, and a facility in
Valley Stream, New York.
However, unlike other employees, drivers are required to
be of legal age to drive, must possess a commercial driver’s
license with hazardous materials certification, as well as a
Department of Transportation certification, and must have a
clean driving record. Drivers also must undergo a medical
examination, as well as periodic drug testing. Additionally,
drivers must take and pass a “Truck Driver Load Perform-
ance Test,” and know the Employer’s safety regulations for
the operation of commercial vehicles. Also, drivers are
obliged to complete and maintain daily trip logs, as well as a
logbook regarding the condition of the trucks, and must
wear a distinct uniform not given to other employees.
The Acting Regional Director found that the drivers have
overlapping job functions with other employees, as well as
considerable interchange with coworkers. She further found
that the drivers are a component of a larger group of em-
ployees that provide special services to customers. Al-
though the record in the instant matter shows a degree of
overlapping job function and employee interchange, we
disagree with the Acting Regional Director that this evi-
dence of job overlap and employee interchange is signifi-
cant enough to warrant the conclusion that the drivers do not
constitute a functionally distinct group with a distinct com-
munity of interest.
The drivers and dispatchers are part of the special ser-
vices department, and, like the other employees in the spe-
cial services department, report to the special services su-
pervisor.5 The other job classifications included in the spe-
cial service department are phone sales associates, special
services associates, and pullers.6
New Rochelle Store Manager Siuta testified that the driv-
ers spend the majority of their work time out on the road,
making deliveries. Before the drivers begin their deliveries,
however, they have a variety of responsibilities. Drivers
must pull from the store shelves whatever merchandise the
pullers did not gather the previous night. Since pullers do
not work at all on Sunday nights, on Mondays drivers may
spend approximately 4 hours of their 8-hour shift in the
store pulling merchandise. On the other days of the
4 All employees except cashiers go through sales training.
5 Like all other employees, drivers are subject to performance
evaluation by not only their own supervisor, but by management repre-
sentatives from each department. Also, like other employees, drivers
obtain approval for vacation and personal days off from the store man-
ager.
6 “Pullers” pull the merchandise from the store shelves which is to
be delivered the following day. Pullers work every night except Sun-
day from 10 p.m. to 6 a.m. Drivers start their 8-hour shifts at various
times, commencing at 6 a.m.
331 NLRB No. 168
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1290
week, drivers may spend approximately 2 to 3 hours
pulling merchandise. Because the work schedules of the
pullers and the drivers do not overlap, the drivers do not
have significant interaction with the pullers.7
With regard to interaction with the other job classifica-
tions in the special services department, driver Ortega
testified that, in the regular course of his duties, he does
not have regular contact with the other special services
department employees including the special services as-
sociates, or the phone sales associates.8
Based on a 40-hour workweek, the drivers spend a
maximum 30–40 percent of their time in the store pulling
merchandise for delivery. Both the New Rochelle store
manager, John Siuta, and New Rochelle driver, Fred Or-
tega, testified that while drivers are in the store pulling
merchandise, they are frequently approached by custom-
ers who ask the drivers for assistance. Siuta testified that
he observes a driver having some sort of contact with
customers virtually everyday. Siuta testified that when
employees are approached by customers, all employees,
including drivers who are in the store pulling their deliv-
ery merchandise, are expected to stop what they are do-
ing and assist customers. Siuta testified that if a cus-
tomer asks a driver about a product the driver does not
know anything about, the driver is expected to walk that
customer over to a knowledgeable sales associate.9
Driver Ortega testified that if a customer approaches him
while he is in the store, he directs them to a sales associ-
ate. He spends a minimal amount of time talking to sales
associates while in the store. Driver Ortega does not sell
merchandise while he is in the store, nor does he know
how sales are completed.
After pulling the merchandise for delivery, drivers are
responsible for inspecting the pulled merchandise for
quality, loading merchandise to be delivered onto trucks,
securing it on the truck, cross-checking the merchandise
with computer orders, telephoning customers to confirm
final delivery arrangements, making a pretrip inspection
of the truck to ensure it is in proper condition, and deliv-
ering the merchandise to the customer. Before leaving
the facility to make their deliveries, a driver must be
signed out by a management representative.

7 Driver Ortega testified that pullers are usually leaving work as the
truck drivers are arriving at work. Store Manager Siuta also testified
that the work times of pullers and drivers do not usually overlap.
8 Regarding contact with other special service department employ-
ees, driver Ortega testified that after drivers have loaded and secured
their trucks, they walk through the store to the special services desk,
located at the front of the store. Drivers use the phones at the special
services desk to call customers regarding the delivery schedule. Ortega
testified that assistant managers and customers are usually in the area of
the special services desk. Ortega further testified that when he is out on
the road making deliveries and a need arises to call an assistant man-
ager, he calls in to the store, identifies himself to the phone sales asso-
ciate, and the phone sales associate then pages an assistant manager to
assist him.
9 Siuta further testified that he would prefer that the driver stayed there
and learn through that process so he could help a customer in the future.
At the New Rochelle store, the drivers use four deliv-
ery trucks, consisting of two flat bed trucks with attached
forklifts and two box trucks. Drivers also may use sev-
eral “load and go” pickup trucks.10 New Rochelle Store
Manager Siuta testified that approximately once a week,
due to an immediate customer service need, an assistant
manager will be assigned to make a delivery using a
“load and go” pickup truck. If needed, a nondriver
hourly employee may be assigned to accompany the as-
sistant manager on the delivery. Also, on occasion, an
hourly employee may accompany a regular driver to as-
sist in a delivery. There is no evidence that any em-
ployee other than a driver ever drives the flat bed trucks
or the box trucks.
New Rochelle Store Manager Siuta testified that a
driver may be assigned to work inside the store instead of
driving if driving conditions are hazardous, if the driver
were waiting for a certification, or if the volume of deliv-
eries is low. However, driver Ortega testified that he has
never been assigned, temporarily or otherwise, to attend
to customers.
Three of the nine drivers who have been employed at
the New Rochelle facility during the past year held posi-
tions other than driver at some point during their career
with the Employer. One driver at the Bronx facility was
formerly employed in the position of puller.
It is well established that the Act does not require the
unit for bargaining be the optimum, or most appropriate
unit, but only an appropriate unit. See Overnite Trans-
portation Co., 322 NLRB 723 (1996). In deciding
whether a petitioned-for unit is an appropriate unit, the
Board’s focus is on whether the employees share a com-
munity of interest. Id. at 724. Factors considered by the
Board in determining community of interest among em-
ployees include:
[A] difference in method of wages or compensation;
different hours of work; different employment benefits;
separate supervision; the degree of dissimilar qualifica-
tions, training and skills; differences in job functions
and amount of working time spent away from the em-
ployment or plant situs . . . the infrequency or lack of
contact with other employees; lack of integration with
the work functions of other employees or interchange
with them; and history of bargaining.
Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962).
The Board has acknowledged that truck drivers often have a
“dual community of interest,” with certain factors support-
ing their inclusion in the same unit as other plant employees,
and certain factors favoring their representation in a separate
unit. See Pacemaker Mobile Homes, 194 NLRB 742, 743
(1971).
10 These “load and go” pickup trucks are available for rental to customers
who want to drive their own merchandise home. The Bronx store has two
flatbed trucks, one box truck and three “load and go” pickup trucks.
HOME DEPOT USA 1291
In concluding that the petitioned-for unit is not appropri-
ate, the Acting Regional Director found that the drivers lack
separate supervision, work in close proximity to and are in
contact with other employees, are integrated in the activities
and operations of the store, and have overlapping job func-
tions and considerable interchange with other employees.
Although it is undisputed that the drivers do share a number
of common benefits, terms, and conditions of employment
with the Employer’s other employees, share common su-
pervision with other employees, and have some degree of
interaction and integration with other employees, we find
that these similarities are substantially outweighed by the
factors supporting a conclusion that the drivers as a group
share a distinct community of interest, and therefore consti-
tute an appropriate unit.
Unlike other employees, drivers are required to have spe-
cial driving qualifications and licensing. Although drivers
spend some portion of their work time performing a “pull-
ing” function, they have little to no contact with the pullers,
and spend the majority of their work time on the road mak-
ing deliveries. Drivers wear distinct uniforms. They do not
have substantial contact with the other employees in the
special services department. The contact that drivers have
with the sales associates and customers while the drivers are
in the store pulling their merchandise for delivery occurs
randomly, and is incidental to their primary job function of
operating the delivery trucks, preparing for deliveries and
making deliveries.11 Although other employees, primarily
assistant managers, may be assigned to make deliveries to
customers using the “load and go” pickup trucks, and occa-
sionally a nondriver employee will accompany a driver on a
delivery, there is no evidence that any employee other than
a driver ever operates the large delivery trucks.
Further, that several drivers previously held other posi-
tions at some point during their career with the Employer
does not demonstrate substantial interchange of employ-
ees. Similarly, we do not find that the possibility that
drivers may be assigned to work in the store if the vol-
ume of deliveries is low or weather conditions are haz-
ardous is sufficient evidence to find substantial inter-
change among drivers and other employees.12
Although the Employer contends, and the Acting Re-
gional Director found, that the instant matter is con-

11 In evaluating the degree of integration among various classifica-
tions of employees, the Board has acknowledged that there are neces-
sarily instances where various groups of employees may act in concert
in the furtherance of their job responsibilities. However, the frequency
and substance of such instances must also be considered. See Big Buck
Lumber, 241 NLRB 639, 641 (1979). We find the fact that drivers,
while they are inside the store pulling the merchandise they need in
order to make their deliveries, may provide assistance to the customers
that approach them and direct the customers to knowledgeable sales
associates, is insufficient to show substantial functional integration or
interaction between drivers and other store employees.
12 See Office Depot, Inc. v. NLRB, 184 F.3d 506 (6th Cir. 1999) (a
unit of drivers found to be appropriate notwithstanding that drivers
performed work of warehouse employees when drivers were placed on
light duty or when they returned early from the road).
trolled by Levitz Furniture Co. of Santa Clara, Inc., 192
NLRB 61 (1971), where the Board found that a proposed
unit of truckdrivers did not constitute a functionally dis-
tinct group with special interests sufficient to warrant
their separate representation, we find the facts here
clearly distinguishable. In Levitz, the truckdrivers were
not required to have any special licenses or driving tests.
Other employees performed work regularly performed by
truck drivers, and used the drivers’ trucks to haul trash
and other activities. In Levitz, the Board found that sales
of merchandise required the close cooperation of selling
and nonselling categories of employees, and that in the
course of such sales there was substantial contact be-
tween customers and most employees, including truck-
drivers. Further, all employees participated in taking
inventory once a year, approximately every 6 weeks all
employees participated in dockside sales of surplus mer-
chandise, and at least three truckdrivers had been asked
to sell on the sales floor. Additionally, in Levitz, tempo-
rary interchanges of employees throughout the store were
frequent and regular. With the high degree of functional
integration and employee interaction in Levitz, the Board
found that, notwithstanding that truckdrivers spent a ma-
jority of their time away from the plant, the facts sup-
ported a finding of a community of interest with all of
the employees at the employer’s store, and therefore de-
termined that the truck drivers did not constitute a func-
tionally distinct group with special interests sufficient to
warrant separate representation. Id. at 62–63.
The circumstances in the present case are clearly dis-
tinguishable. In particular, the degree of employee inte-
gration and interchange in the instant matter is signifi-
cantly less than in Levitz. Unlike the truckdrivers in Lev-
itz, the drivers here do not spend substantial portion of
their time working alongside or in close proximity with
other employees. Similarly, other employees here are
not involved substantially with driving. And the drivers
here, unlike those in Levitz, are licensed.
It is well settled that there is more than one way in
which employees of a given employer may be appropri-
ately grouped for purposes of collective bargaining.
Overnite Transportation Co., supra at 723. On balance,
we find that although drivers share a number of similari-
ties with other employees, and have contact with other
employees, the weight of evidence supports a finding
that the petitioned-for unit of drivers share a sufficiently
distinct community of interest, and therefore constitute
an appropriate unit under the Act.13
Having found the drivers to be an appropriate unit, we
remand the case to the Regional Director for a determina-
tion regarding the scope of the unit.
13 As the record contains insufficient evidence concerning the duties of
the dispatcher at the Bronx facility, this dispatcher shall vote under chal-
lenge in any election that might be directed by the Regional Director.