Lonergan Corp.

National Labor Relations Board - Board Decisions

Dec 28, 1971

194 N.L.R.B. 742 (N.L.R.B. 1971)

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacemaker Mobile Homes , a Division of Lonergan
Corporation and Local 229, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Petitioner. Case
4-RC-8858
December 28, 1971
DECISION ON REVIEW AND
CERTIFICATION OF BARGAINING
REPRESENTATIVE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 4 on
December 9, 1970, an election by secret ballot was
conducted on May 28, 1971, in a unit of production
and maintenance employees. The tally of ballots
indicated that of the 77 ballots cast, 36 were for and 34
against the Petitioner, and 7 ballots, all cast by
truckdrivers, were challenged. The challenged ballots
are sufficient in number to affect the results of the
election. No objections to conduct affecting the
results of the election were filed by either party.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
issued a Supplemental Decision, Order Directing
Hearing and Notice of Hearing on Challenges and, on
June 22, 1971, a hearing on challenges was held before
Hearing Officer Robert A. Lieberman. On July 16,
1971, the Hearing Officer issued his report recom-
mending that all challenges be overruled and that the
ballots of the seven truckdrivers be opened and
counted. The Petitioner filed exceptions to that report
and, on September 16, 1971, the Regional Director
issued a Supplemental Decision and Determination of
Challenges in which h* affirmed the Hearing Officer's
findings and recommendation.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, the Petitioner filed a timely Request for Review
of the Regional Director's Supplemental Decision,
contending that the overruling of the challenges was
erroneous. Subsequently, the Employer filed a state-
ment in opposition to the Petitioner's Request for
Review.
The Board by telegraphic order dated October 14,
1971, granted the Petitioner's Request for Review and
1 The election herein was originally scheduled for January 15, 1971, but
was postponed pending the Board's Decision on Review of the Regional
Director's decision that group leaders were not supervisors. On April 30,
1971, the Board affirmed the Regional Director 's decision and the election
was rescheduled and conducted on May 28, 1971.
At the preelection hearing in November 1970 no reference was made to
the truckdrivers or to the men who have supervised them; and the names
of the truckdrivers then employed were not included on the original
stayed the opening and counting of ballots pending
decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and makes
the following findings:
It is undisputed that throughout the course of the
preelection proceedings herein, neither party in any
way referred to the truckdrivers whose unit placement
is now at issue .' The first reference to the existence of
any truckdrivers was made when their names ap-
peared on the Excelsior list submitted by the Employ-
er on May 10, 1971; and the question of their unit
placement was first put in issue when,the Petitioner
challenged the ballots of all seven of the drivers,
contending that truckdrivers should be excluded from
the unit. Under these circumstances, we shall apply
the same unit criteria which would have been applied
if the Petitioner had-during the course of the
preelection proceedings-specifically requested a unit
excluding truckdrivers, and the Employer had op-
posed that request.
The Employer is engaged in the business of
producing mobile homes and modular units on an
alternate basis.2 Like the mobile homes, the interiors
of the modular cubicles represent complete living
units. Unlike mobile homes, which come off the
production line ready for delivery and use by the
buyer, modular units are placed on a 1o-boy and
transported from the Employer's plant at Scranton,
Pennsylvania, to the buyer's site at Edgewood,
Maryland-a distance of over 200 miles-where one
or more cubicles are installed into the frame of an
apartment building to form a studio or a one- or two-
bedroom apartment.
The seven truckdrivers challenged by the Petitioner
haul these modular units from the plant to the
Maryland site. When a driver reports for work, the
unit has already been placed on a to-boy parked away
from the plant building, in or beyond the yard area.
The driver reports to the office and obtains the
necessary papers; inspects and secures the unit for
shipment; and proceeds to the site. Upon arrival, the
driver reports to the Employer's foreman at the site;
checks the unit for damage and spots it for lift up by
the crane; removes the bolts used to secure the cubicle
Excelsior list submitted by the Employer in anticipation of the January 15,
1971, election date.
2 From November 1970 to February 1971 mobile homes were produced,
from March to June 1971, that is, before and after the election , modular
units were produced, and during the summer months production of mobile
homes was resumed. The Employer's general manager indicated that he
expects to be producing modular units from September 1971 to April 1972.
194 NLRB No. 122
PACEMAKER MOBILE HOMES 743
to the to-boy; and installs the bolts used to lift it into
the frame of the apartment building.3 After the crane
has lifted the unit off of the to-boy, the driver returns
to the plant with the empty to-boy. This entire process
takes from 10 to 12 hours with 6 to 8 hours spent on
the road, 2 hours at the site , and the remaining 2 hours
checking in and out at the plant.4
Drivers may report to work anytime after sunup but
are generally on the road early. They are paid on a
mileage basis except that they receive an hourly wage
for time spent at the site, for checking in and out at the
plant, and for whatever time they may occasionally
spend doing yard work.5 Each driver also receives a
$200 advance against expenses and is allowed 14-16
cents per mile for gasoline and oil costs. The
Employer pays for part of the cost of the truckdrivers'
uniforms but pays for only the major repairs on the
trucks. Drivers keep a log and are governed by ICC
regulations.
In contrast to the above, production employees
begin work at 7 a.m. and are paid on an hourly or
incentive basis. They leave when their work is finished
and it appears that some often leave as early as 1 or 2
p.m. Production employees do not wear uniforms and
the only equipment supplied to them by the Employer
is safety goggles. All employees, including truckdriv-
ers, receive the same holiday and vacation benefits.
The above facts present an overall picture which is
similar to many cases involving the inclusion-exclu-
sion problem with respect to truckdrivers, i.e., these
truckdrivers have what amounts to a dual community
of interest with some factors supporting their exclu-
sion from an overall production and maintenance unit
and some factors supporting their inclusion in the
broader unit. As the Board has frequently noted, in
such a situation and where no other labor organiza-
tion is seeking a unit larger or smaller than the unit
requested by the Petitioner, the sole issue to be
determined is whether or not the unit requested by the
Petitioner is an appropriate unit. Accordingly, while
we agree that certain factors may support the
3 Although the Employer contends that drivers perform production
work to the extent that they may be required to make repairs on the unit
prior to delivery to the site or before installation into the building frame,'it
appears that while the drivers do make a routine check of the unit pursuant
to a form provided by the Company, only minor repairs are expected of
them-such as repairing the plastic covering used to protect the cubicle
from the weather
4 The same truckdrivers also deliver mobile homes for the Employer,
but the record contains no description of the distances or procedures
involved
Regional Director's conclusion that a unit including
the truckdrivers is an appropriate unit, in our view the
unit requested by the Petitioner which would exclude
the truckdrivers is an appropriate unit and it is
therefore irrelevant that a larger unit might also be
appropriate .6
In concluding that a unit excluding truckdrivers is
an appropriate unit, we note in particular that these
truckdrivers are a functionally distinct group possess-
ing different skills and qualifications than production
employees, that they have little or no contact with
other employees, and that they are away from the
plant most of the day working without any direct
supervision. Moreover, unlike production and main-
tenance employees, they are paid primarily on a
mileage basis, are entrusted with a $200 advance
against expenses, are required to wear a uniform, and
work 10-12 hours each day. Finally, their primary
function is to deliver the Employer's product and they
do not perform any production work on a regular or
substantial basis. Under these circumstances, we
conclude that the truckdrivers have a community of
interest sufficiently separate so as to warrant their
exclusion from the production and maintenance unit.
Accordingly, as the tally of ballots shows that the
Petitioner has received a majority of the valid ballots
cast, we shall certify it as the exclusive bargaining
representative for the employees in the appropriate
unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
votes have been cast for Local 229, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and that said labor
organization is the exclusive representative of the
employees in the unit found appropriate, within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
5 The Employer testified that on the day before a holiday when ICC
regulations require a driver to stay off the road , he may occasionally use a
couple of truckdrivers in the yard , but gave no specific information as to
how often this might occur . However, the Employer did specifically state
that all seven truckdrivers Were hired as truckdrivers, that they have never
acted as substitutes for production employees, and that the primary
function of the truckdrivers was to deliver the product.
6 See Tallahassee Coca-Cola Bottling Co, 168 NLRB 1037, enfd 409
F.2d 201 (C.A. 5, 1969), and cases cited therein.