Keith Clark, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 773 (N.L.R.B. 1979)

KEITH CLARK. INC.
Keith Clark, Inc. and Sidney Typographical Union
No. 81, International Typographical Union, AFL-
CIO, Petitioner. Case 3-UC- 150
September 28, 1979
DECISION ON REVIEW AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On June 8, 1979, the Acting Regional Director for
Region 3 issued a Decision and Order clarifying the
unit in this proceeding, in which he clarified the unit
of the Employer's employees represented by Peti-
tioner to include the classification of tractor-trailer
truckdriver. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, the Employer
filed a timely request for review of the Acting Re-
gional Director's Decision.
The National Labor Relations Board, by tele-
graphic order dated August 6, 1979, granted the re-
quest for review. Thereafter, the Employer filed a
brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The issue on review, as noted, involves whether the
Employer's newly created position of tractor-trailer
truckdriver should be included within the unit of pro-
duction and maintenance employees for which Peti-
tioner is the bargaining agent. The Acting Regional
Director decided that the job classification should be
encompassed within the unit, based on an analysis of
the pertinent clauses in the applicable collective-bar-
gaining contract and of community-of-interest con-
siderations. After a careful examination of the record,
we have decided to dismiss the unit clarification peti-
tion herein, because the evidence reveals that John
Morrison, the only current tractor-trailer driver, also
spends a substantial amount of time supervising unit
employees at the plant. We emphasize that this deter-
mination is entirely without prejudice to the later fil-
ing of such a petition involving this job classification
if circumstances should change, as, for example, if
Morrison were to be assigned full-time driving duties.
The important facts may be briefly stated. The Em-
ployer is engaged in the printing of calendars at its
two facilities in Sidney, New York. Before March
1978, there were 18 to 24 bargaining-unit employees
in the shipping department, divided among 3 shifts.
During the period Morrision was employed as a
working foreman, a position not included in the bar-
gaining unit. In this capacity, Morrison responsibly
directed the work of employees in the shipping de-
partment, including overseeing the loading of goods
into the vehicles of common carriers. Morrison also
had the power effectively to recommend the hiring
and firing of employees, and exercised that power.
Such recommendations by Morrison were followed
without independent investigation by the Employer.
Thus, Morrison clearly was a supervisor as defined in
Section 2(11) of the Act.
In March 1978 the Employer made a change in its
operations. Instead of warehousing finished products
at its Sidney facilities, the Employer began to ware-
house its finished products at its Lyndhurst, New Jer-
sey, facilities. This change in operations required
shipments to Lyndhurst about three times per week
by tractor-trailer truck, 10-1/2 months per year
(March to mid-January), as well as less frequent trips
to other points. In addition, this change resulted in a
reduction of those employed in the shipping depart-
ment in Sidney from 18 to 24 employees working 2 to
3 shifts, to 4 to 6 employees working a single shift.
The Employer leased the necessary tractor-trailer
equipment and assigned the driving duties to Morri-
son. However, between March and mid-January.
when Morrison was driving the tractor-trailer truck,
he also continued to perform duties as a working fore-
man in the shipping department. This consumed
about 20 percent of his time each week. In addition,
Morrison was employed as a full-time working fore-
man for the remaining 1-1/2 months of the year. The
supervisory nature of the working foreman position
did not change when Morrison began driving the
truck.
It is evident from these facts that Morrison contin-
ued to devote a significant portion of his time to the
performance of supervisory functions over unit em-
ployees after March 1978, specifically 20 percent of
his time for 10-1/2 months per year and 100 percent
of his time for 1-1/2 months. Thus, assuming without
deciding that Morrison's tractor-trailer truckdriving
duties would dictate the inclusion of that position in
the unit, Morrison's continuing supervision of unit
employees presents a serious conflict-of-interest prob-
lem. This is so because he acts as a representative of
management for a significant amount of time each
week, as well as a rank-and-file unit employee. In
these circumstances, we have no alternative other
than to exclude Morrison from the unit.' Accord-
ingly, we shall dismiss the instant petition.
ORDER
It is hereby ordered that the petition for unit clari-
fication herein be, and it hereby is, dismissed.
US. Radium Corporation, 122 NLRB 468. 472 473 (1958); Midland
Broadcaslers, Inc., 176 NLRB 107, 110-111 (1969).
245 NLRB No. 98
773