Kalamazoo Paper Box Corp.

National Labor Relations Board - Board Decisions

Mar 6, 1962

136 N.L.R.B. 134 (N.L.R.B. 1962)

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Finding
On the entire record, the Trial Examiner finds that the evidence does not sustain
the allegations of the complaint and will recommend that the complaint be dismissed
in its entirety.
CONCLUSIONS OF LAW
1. The Respondent, Benjamin Miller and Julius Tarr, Co-partners trading as
Monroe Upholstery Company, is, and has been at all times material herein, engaged
in commerce within the meaning of Section 2(6) of the Act.
2. The Union, Textile Workers Union of America, AFL-CIO-CLC, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a) (1) and (3) of the Act as alleged in the complaint.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the Trial
Examiner recommends that the complaint be dismissed in its entirety.
Kalamazoo Paper Box Corporation and Chauffeurs, Teamsters
and Helpers Local Union No. 7, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Ind., Petitioner . Case No. 7-RC-4831.
March 6, 1962
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Iris H. Meyer, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization named above claims to represent certain
employees of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act for the reasons herein-
after indicated.
The Petitioner seeks to sever from the existing production and
maintenance unit, currently represented by the Intervenor,' a unit of
truckdrivers at the Employer's Kalamazoo, Michigan, operation.
Alternatively, Petitioner is willing to represent a unit combining
truckdrivers and shipping department employees, or any driver's unit
found appropriate by the Board. The Employer and Intervenor
1 International Brotherhood of Pulp, Sulphite and Paper Mill Workers, Local 518, AFL-
CIO, herein called the Intervenor, in agreement with the Employer , urges Its current con-
tract as a bar to this proceeding. Petitioner claims that its petition was timely filed with
respect thereto , and that, in any event , the contract Is not a bar on other grounds. In
view of our determination of the unit Issue herein, we find it unnecessary to rule on these
contentions.
136 NLRB No. 10.
KALAMAZOO PAPER BOX CORPORATION 135
oppose severance in any combination of truckdrivers requested by
Petitioner on the ground that there is no group sufficiently distinct
functionally to warrant separate representation and, therefore, the
existing employerwide unit of employees established by Board cer-
tification in 1945 is the only unit appropriate for purposes of collective
bargaining.
The Employer is engaged in the manufacture of folding and setup
paper boxes. Its principal office and plant is located at 391 South
Pitcher Street and a branch plant is operated at 3334 North Pitcher
Street. The operations involved herein function in a four-story loft
building. The top two floors are devoted to manufacturing. Finished
products are dropped by elevator to the second floor in boxes or racks
where they are counted, wrapped, sealed, and placed in inventory or
assembled into orders. The first floor, in addition to the administra-
tive offices, is occupied by the raw material storage area and the waste-
paper baling operation, with the loading dock at the rear of the build-
ing. Here paperboard is brought in on vans by suppliers' drivers.
Using a lift truck, the material is unloaded, checked, placed on skids,
and put in stock from which it is supplied to the fourth floor manu-
facturing process by elevator. Orders for shipment of finished prod-
ucts to customers are assembled on the second floor and lowered by
chutes to the loading dock where they are caught by the loaders and
placed onto the trucks. Bulky orders are placed on skids and lowered
by elevator.
The entire operation is under the direct supervision of the Em-
ployer's vice president in charge of production. Under his general
supervision, the shipping department, consisting of the first and
second floor operations, is supervised by a shipping clerk who has her
office on the second floor and from which she directs the operation.
Employed in the shipping department are two truckdrivers, a re-
ceiving clerk, and three wrappers. A stockhandler is presently in
indefinite layoff status.
The two truckdrivers deliver the Employer's products to the cus-
tomers, both locally and out of State, performing the incidental load-
ing and unloading functions. They also truck waste from the north
plant for baling at this location. As these trucking duties are insuffi-
cient for full-time occupation, requiring little more than 50 percent
of their time, the truckdrivers also help in baling wastepaper on the
first floor, help in wrapping, storing inventory, and assembling orders
on the second floor, operate elevators to the third and fourth floors to
supply the production forces, and otherwise are assigned duties in
the production area.
The receiving clerk, in addition to verifying and accepting deliveries
of material, assists in loading and unloading trucks, bales waste-
paper, keeps the first floor and dock area clean, keeps board inventory
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in proper order operating the lift truck for shifting of material, and
moves board inventory to the fourth floor where production begins.
He also has regular city truck delivery duties which involve approxi-
mately 15 to 20 percent of his working time. Occasionally he works
on the second floor as a wrapper or stockhandler. There are produc-
tion employees classified as stockhandlers on both the third and fourth
floors. Wrappers, who ordinarily perform the functions carried on
at the second floor are also used as stockhandlers and work with pro-
duction employees when they have no wrapping or order assembly
duties to perform, and production department employees are used to
help on the second floor if it becomes overcrowded with stock or orders.
In addition to the lift truck used within the plant, the Employer
has four trucks; two tractor-trailers and two small vans. Demand
for deliveries increases in the fall of the year and maintains its highest
rate through Christmas. During this period the Employer's four
trucks are frequently out on deliveries, two of them operated by em-
ployees other than truckdrivers. Production employees may be called
upon to make truck deliveries at any time when needed, but have
occasion to do so most frequently during the busy season. Seniority
is on a plantwide basis, and when layoffs are necessitated because of
slack demand for deliveries, truckdrivers are not laid off for that
reason but are rather placed in their sequence in the employerwide
seniority list. Thus, during such periods truckdrivers spend more of
their working time performing other duties in the plant. All em-
ployees are paid an hourly rate and receive the same benefits.
A plantwide unit is presumptively appropriate under the Act, and
a community of interest inherently exists among such employees.
Where there has been a history of bargaining in a production and
maintenance unit, including truckdrivers, the existence of a substan-
tial difference in interests and working conditions of truckdrivers
from those of other employees, which outweighs their admitted com-
munity of interest, must be demonstrated to warrant granting their
severance therefrom as a separate appropriate unit.
Examination of past Board practice in truckdriver severance cases
discloses that at an early period the Board recognized the dual nature
of the interests of truckdrivers encompassing both a common interest
with other employees of the same employer and a special homogeneity
growing out of their particular function in the employer's operation.
The Board concluded that, where their special separate interests were
emphasized by the existence of substantial differences in their working
conditions as distinguished from those of other employees, severance
as a separate truckdrivers' unit was warranted. It was the functional
rather than organizational or craft skill distinctions which formed the
basis for separate units of truckdrivers, giving recognition to the dif-
fering interests created thereby. The degree of these differences,
KALAMAZOO PAPER BOX CORPORATION 137
however, varied greatly from industry to industry and from employer
to employer, depending to a large extent upon particular business
practices. It was necessary, therefore, to evaluate the conditions which
obtained in each given situation in order to determine where the pre-
dominant community of interest existed.
Factors which warranted consideration in determining the existence
of substantial differences in interests and working conditions included :
a difference in method of wages or compensation; different hours of
work; different employment benefits; separate supervision; the degree
of dissimilar qualifications, training, and skills; differences in job
functions and amount of working time spent away from the employ-
ment or plant situs under State and Federal regulations; the infre-
quency or lack of contact with other employees; lack of integration
with the work functions of other employees or interchange with them;
and the history of bargaining.
In more recent times, while the Board has occasionally made ref-
erences to the eixstence of some of these factors in granting severance
of truckdrivers from more comprehensive units, it has, for the most
part, not required an affirmative showing in each case that their inter-
ests and conditions of employment substantially differed from those
of other employees in the established unit. The net result, in effect,
has been tantamount to a practice of automatically granting severance
to truckdrivers whenever requested.
As we view our obligation under the statute, it is the mandate of
Congress that this Board "shall decide in each case . . . the unit ap-
priate for the purpose of collective bargaining." 2 In performing
this function, the Board must maintain the two-fold objective of in-
suring to employees their rights to self-organization and freedom of
choice in collective bargaining and of fostering industrial peace and
stability through collective bargaining. In determining the appropri-
ate unit, the Board delineates the grouping of employees within which
freedom of choice may be given collective expression. At the same
time it creates the context within which the process of colective bar-
gaining must function. Because the scope of the unit is basic to and
permeates the whole of the collective-bargaining relationship, each
unit determination, in order to further effective expression of the
statutory purposes, must have a direct relevancy to the circumstances
within which collective bargaining is to take place? For, if the unit
determination fails to relate to the factual situation with which the
parties must deal, efficient and stable collective bargaining is under-
mined rather than fostered.
To accord automatically to a subgroup of employees such as truck-
drivers, severance from a larger established and stable bargaining
2 Section 9 (b) of the Act.
8 See American Cyanamid Company, 131 NLRB 905
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit merely on the basis of the existence of the traditional job classi-
fication and a request for a separate unit encompassing such classifica-
tion, does not, in our opinion , adequately discharge this basic and far-
reaching responsibility placed upon the Board by Congress . A title
or classification in common usage does not necessarily establish that
separate special interests exist and are preponderant . This can be
determined only by making an informed judgment based upon an
analysis of the factual circumstances bearing upon the distinguishing
factors present in each case.
With this view in mind , we have carefully considered the present
practice and are convinced that it is not a salutary approach toward
achieving the purposes of the Act, because it tends to disregard the
community of interests which truckdrivers have with other employees,
and ignores the possibility that the job content and employment situa-
tion may not be accurately reflected in the classification or title held-
indeed may have little relevancy to the circumstances with which the
parties must deal. Therefore , we believe it is both necessary and de-
sirable for us to return to the earlier practice of determining the
predominant community of interest based upon consideration of the
various factors stated above . Where these factors support a con-
clusion that the community of interest shared by truckdrivers with
other plant employees outweigh those which would be the basis for
severance from an existing production and maintenance unit , we shall
deny severance to truckdrivers . To the extent that this approach
is inconsistent with that implied in prior determinations , such cases
are hereby overruled.
On the facts present in the instant case, it is clear that the truck-
drivers are under the same supervision , receive the same benefits, work
the same hours , are paid on the same basis, and are on the same
seniority list as all other employees . Their duties are closely associ-
ated with the operations of the plant. Although these two employees
may spend about half of their time in truck driving and loading and
unloading , there exists such regular and frequent interchange with
other employees that we cannot say that the two truckdrivers con-
stitute a separately identifiable unit. Thus, the truckdrivers spend a
substantial portion of their time working alongside , or in close
proximity with, and perform exactly the same functions as other pro-
duction and shipping employees . Similarly , production as well as
shipping employees also make truck deliveries . The same is true
with respect to the shipping department employees who also inter-
change duties with production employees . These facts all point to the
lack of separate interests of truckdrivers , and emphasize the basic
overall community of interests of the employees in the employerwide
unit in which these employees have been represented for a number of
years.
KALAMAZOO PAPER BOX CORPORATION 139
In these circumstances, the Board is convinced, and finds, that
neither the truckdrivers, alone, nor the shipping department, as such,
constitutes a functionally distinct group with special interests suffi-
ciently distinguishable from those of the Employer's other employees
to warrant severing them from the overall unit.
Our dissenting colleagues misinterpret the import of our decision
herein. We do not hereby hold that where the truckdrivers involved
constitute a functionally distinct group of employees engaged in their
traditional occupation, they may no longer be severed from a broader
industrial type unit. Nor are we overruling those cases which, after
evaluating the particular factual situation involved, concluded that
the circumstances warranted severance because of distinct and sepa-
rate interests. What we are holding is precisely this : before we will
accord severance from an established unit to those claiming functional
distinction with resulting special interests, we will first determine
whether in reality they constitute a functionally distinct group and
whether as a group they do have overriding separate special interests;
and we hold the view that this determination must be based upon the
factual situation existing in each case and not upon title, tradition, or
practice.
Our dissenting colleagues, in quoting Section 9(b) and particularly
in relying upon Section 9 (b) (2) have misplaced the emphasis. With-
out here delineating what degree of limitation is placed by Section
9(b) (2) upon the Board's discretion in according weight to bargain-
ing history or a prior determination in craft severance cases, suffice it
to reiterate our observation that truckdrivers units are not based upon
craft status, and even if as a general proposition they were treated as
craftlike in character, it cannot be urged that Congress contemplated
according special status to one and all who may claim it. Before per-
mitting severance of such special units, it is the Board's duty to deter-
mine not only whether the employees sought qualify as craftsmen but
also whether they are in fact engaged in their specialized occupation.
Moreover, our determination here is not based solely upon a history of
bargaining as part of a larger unit, but rests upon a finding required
by the pertinent facts presented that the employees sought do not have
such special and distinct interests as would outweight and override
the community of interest shared with other plant employees. In
these circumstances, permitting severance of truckdrivers as a sepa-
rate unit based upon a traditional title, as our colleagues urge, would
result in creating a fictional mold within which the parties would be
required to force their bargaining relationship. Such a determination
could only create a state of chaos rather than foster stable collective
bargaining, and could hardly be said to "assure to employees the full-
est freedom in exercising the rights guaranteed by this Act" as con-
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
templated by Section 9 (b). In view of the foregoing, we shall dismiss
the petition.
[The Board dismissed the petition.]
MEMBERS DODGERS and LEEDOM dissenting :
The Petitioner seeks to sever a unit of truckdrivers from an existing
production and maintenance unit. Under well-established Board
policy, the Petitioner is clearly entitled to an election in such a unit.
The Board from its very inception has recognized the separate
identity and interests of truckdrivers. Thus, the Board has consist-
ently established them in separate units in appropriate circumstances .4
In other circumstances, it has consistently granted them self-
determination elections.' Even before 1947 there were instances where
the Board permitted truckdrivers to sever from existing production
and maintenance units.' Since the enactment of the Taft-Hartley
' The Board has found a separate unit of truckdrivers appropriate : ( 1) Where there
was no bargaining history and the petitioner sought to represent the truckdrivers sepa-
rately as against the contention that only an overall or plantwide unit was appropriate:
Motor Transport Co, 2 NLRB 492; Triangle Publications , Inc., 39 NLRB 547; United
States Rubber Company, Scioto Ordnance Plant, 49 NLRB 961 ; Simmons Company, 112
NLRB 83; Standard Oil Company of California , 67 NLRB 139 ; Buick Motor Division,
General Motors Corporation Jet Plant, 105 NLRB 488 ; May Department Stores Company
d/b/a The May Company, 85 NLRB 550; Riteway Motor Parts Corp, 115 NLRB 294;
Maul' Industries, Inc, 117 NLRB 1710; Truss-Mart Corporation, et al., 121 NLRB 1430,
Alamo-Braun Beef Company, et al., 128 NLRB 32. (2) Where the production and mainte-
nance employees , excluding truckdrivers , were already represented, and It was alleged that
only an overall unit including the truckdrivers was appropriate: Fairmont Creamery
Company, 58 NLRB 39; The Ohio Rubber Compapy, 74 NLRB 1269 ; Arcata Plywood
Corporation , at al, 120 NLRB 1648 . ( 3) Where the truckdrivers and the production and
maintenance employees were already represented In separate units and the petitioner
sought an overall unit : Star Union Products Company, 127 NLRB 1173. ( 4) Where
most employees were represented in a production and maintenance unit and on of the
petitioners sought to include the truckdrivers as part of the residual unit: Superior
Typesetting Co , 118 NLRB 15
5 For example , Pacific Greyhound Lines, 4 NLRB 520; United States Rubber Company,
Scioto Ordnance Plant, 49 NLRB 961; Standard Oil Company ( Ohio ), Cleveland Division,
63 NLRB 1248 ; Wertheimer Transfer & Storage Company, Inc, 71 NLRB 1286; Heyden
Chemical Corporation , 85 NLRB 1181 ; Ford Motor Company, Aircraft Engine Division,
96 NLRB 1075; Lake County Farm Bureau Cooperative Association, Inc., 101 NLRB
110; Ira Grob , Inc., 110 NLRB 626; Swift & Company, 117 NLRB 61 ; International
Furniture Company, 119 NLRB 1462 ; Truss -Mart Corporation and Gaines Construction
Co , Inc., 121 NLRB 1430 ; Reichhold Chemicals, Inc., 126 NLRB 619; Star Union Prod-
ucts Company, 127 NLRB 1173.
O Prior to 1947, the Board adhered to the rule, laid down in American Can Company,
13 NLRB 1252 , that a history of bargaining in a broader unit including the employees
sought, would preclude any attempt to sever distinct groups, such as truckdrivers, from
the broader unit. Although this rule was generally followed, it became subject to excep-
tions which , the Board found, justified severance See, for example, with respect to truck-
drivers Federal Telephone and Radio Corporation , 49 NLRB 938 ; Sutherland Paper
Company, 55 NLRB 38 ; Sioux City Brewing Company, 63 NLRB 964 ; Radio Corporation
of America, RCA Victor Division, 66 NLRB 1014 ; Lockheed Aircraft Corporation, 73
NLRB 220. Implicit congressional approval of the Board's policy in allowing severance
for distinct groups irrespective of any bargaining history on a broader basis , was made
explicit in Congress' enactment of Section 9(b) : "The Board shall decide in each case
whether, in order to assure to employees the fullest freedom in exercising the rights
guaranteed by this Act, the unit appropriate for the purposes of collective bargaining
shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That
the Board shall not . . . ( 2) decide that any unit Is inappropriate for such purposes on
KALAMAZOO PAPER BOX CORPORATION 141
Act-for some 14 years-the Board has consistently allowed such
severance, requiring only that there be a showing that real truckdriv-
ers were involved.'
These established precedents are based on the fact that truckdrivers
constitute a functionally distinct group of employees engaged in a
traditional occupation. These precedents recognize the fact that the
interests of truckdrivers are identified with the function of trans-
portation, rather than with the particular business or industry which
they serve; that, in the carrying out of their duties, truckdrivers are
subject to Federal and State regulations-regulations which do not
affect other employees; that truckdrivers exercise distinctive skills,
and are charged with substantial responsibilities with respect to life
and property; and that truckdrivers spend a considerable portion
of their time away from the plant and out of contact with the other
employees. In short, they recognize that truckdrivers are sufficiently
"different" from the employees in the particular plant or business
that may be involved as to warrant their establishment as a separate
unit when they are sought separately.
Without coming forward with any persuasive reason for doing so,
our colleagues are now reversing sound and settled Board policy,
which has been applied in literally hundreds of cases. They protest
that the present practice is not "salutary," allegedly because it tends
to disregard the community of interests which truckdrivers have with
other employees. Yet, the Teamsters Union, the traditional repre-
sentative of truckdrivers, has never protested the present Board prac-
tice-has never said that the present practice is an obstacle to the
realization of the "community of interests which truckdrivers have
with other employees." Nor have protests from employees who are
truckdrivers come to our attention. On the contrary, the innu-
merable severance elections in which truckdrivers have voted for sepa-
rate representation, impel the conclusion that truckdrivers themselves
do not believe that their so-called community of interests is being
thwarted by the Board
The record clearly discloses that the truckdrivers here spend more
than 50 percent of their time driving trucks and performing duties
the ground that a different bargaining unit has been established by a prior Board determi-
nation, unless a majority of the employees in the proposed craft unit vote against separate
representation ." [ Emphasis supplied ]
7 For example , Swift & Company , d/b/a New England Dressed Meat and Wool Com-
pany, 81 NLRB 1197; Swift & Company, d/b/a Sperry and Barnes Company, 82 NLRB
748; John A. Denie's Sons Co, 86 NLRB 682; General Box Company , 93 NLRB 789;
American Coat, Apron & Laundry Co , Inc, 100 NLRB 258; United States Defense Corpo-
ration, 101 NLRB 1065; Sherman White & Company, 109 NLRB 1; Tennessee Egg Com-
pany, 110 NLRB 189; Stauffer Chemical Company of Nevada, 113 NLRB 1255; United
States Smelting, Refining and Mining Company, 116 NLRB 661; Interchemical Corpora-
tion, 116 NLRB 1443; Painesville Works, General Chemical Division, Allied Chemical
and Dye Corporation, 116 NLRB 1784; Beechnut Foods Division of The Beechnut Life
Savers Co ., Inc., 118 NLRB 123.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incidental thereto.' Nevertheless, our colleagues conclude that the
truckdrivers lack a separate community of interest and have a "pre-
dominant community of interest" with the production and mainte-
nance employees in the employerwide unit. How our colleagues reach
this conclusion is difficult to comprehend. It seems clear to us that
an employee's "predominant community of interest" is simply, and
quite naturally, a reflection of his "predominant" duties and responsi-
bilities. Here the truckdrivers' "predominant" duties and responsi-
bilities revolve around the driving of trucks and not the process of
manufacturing paper boxes. The drivers' "predominant community
of interest" lies, therefore, with one another and not with other em-
ployees who work in the Employer's plant.
Furthermore, we do not find persuasive the factors enumerated and
relied upon by our colleagues to support their conclusion that the
truckdrivers "lact separate interests." Some of the factors, for ex-
ample, wages, "benefits," and seniority, are the same for all employees
perhaps only because the truckdrivers have not yet had separate
representation. The other factors cited by our colleagues are clearly
overshadowed by one salient fact-these drivers spend more than 50
percent of their working time performing the duties of a truckdriver.
As the Board said in Painesville Works, General Chemical Division,
Allied Chemical and Dye Corporation, 116 NLRB 1784, "where the
aggergate time spent on [driving, loading, and unloading] prepon-
derates over time spent in other duties, we will accord to the drivers
the right to separate representation."
We would therefore follow precedent and direct a severance
election.
8 Our colleagues have stated that the two employees classified as truckdrivers spend
"little more than 50 percent of their time " and "about half of their time" performing
truckdriving duties. They further state that the truckdrivers have "regular and fre-
quent" interchange with other employees , and that the truckdrivers spend a "substantial"
portion of their time working with , and performing the same functions as. the production
and shipping employees . We do not believe the record supports our colleagues in this
respect.
Mr. Kirkpatrick, the Employer's president, was asked only whether the truckdriver's
duties required more than 50 percent of their worktime, and he answered "that's right."
Such an answer does not mean "little more than 50 percent" or "about half ." The record
also indicates that "The truckdrivers are used primarily as truckdrivers," and that only
"occasionally," " in their spare time ," and "only when their truck driving duties fall down
somewhat," are they ever given nontruckdriving duties to perform. Such occasional assign-
ments do not , in our view , constitute the "regular and frequent " Interchange which our
colleagues have found.
Stuart F. Cooper Co. and Bookbinders and Bindery Women's
Local No. 63-63A. Case No. 21-CA-4135. March 7, 1962
DECISION AND ORDER
On January 23, 1961, Trial Examiner Eugene K. Kennedy issued
an Order Closing Hearing and Dismissing Complaint, which is at-
136 NLRB No. 8.