Maule Industries, Inc.

National Labor Relations Board - Board Decisions

May 22, 1957

117 N.L.R.B. 1710 (N.L.R.B. 1957)

1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maule Industries , Inc. and Building and Construction Materials,
Alcoholic and Carbonated Beverages , Processing and Distri-
bution , Drivers & Employees Local No. 290, International
Brotherhood - of Teamsters, Chauffeurs , Warehousemen &
Helpers of America, AFL-CIO, Petitioner . Case No. 12-RC-9
(formerly 10-RC-3573) . May 22,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, hearings were held before Allen Sinsheimer, Jr., and
Philip B. Cordes, hearing officers. The hearing officers' rulings made at
the hearings 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
National Labor Relations Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of truckdrivers employed
at the 10 plants of the Employer located in the Miami, Florida, area.
At the original hearing held on August 22, 1956, the Employer took.
the position that the unit was inappropriate and that only a unit of
all production and maintenance employees at the 10 plants was appro-
priate. Sometime after the close of such hearing, the Employer moved
to reopen the record, alleging, in substance, that since the date of the
hearing, it had acquired, by purchase, 8 plants of the firm of Burnup &
Sims, located in Palm Beach County, Florida. It contended that any
unit found appropriate should include the employees of the newly,
acquired plants. Thereafter, pursuant to an order of the Board, dated
November 16, 1956, the record herein was reopened and the case re-
manded to the Region for the purpose of taking additional testimony
on the issue of the appropriateness of the unit. A supplemental hear-
ing was held on December 11, 1956.' The Employer now takes the
position that, because the newly acquired plants are an integral part of
the Company, any unit which does not include the employees of the
Palm Beach County plants is inappropriate. It also argues that, be-
cause.of, factors of integration, central control of operations, and com-
I The record shows that the Petitioner appeared at the supplemental hearing and asked
for a postponement so as to permit it to file unfair labor practice charges against the
Employer. The hearing officer denied the request and the Petitioner withdrew from the
hearing
117 NLRB No. 221.
MAULS' INDUSTRIES, INC. 1711
mon interests, a unit limited to truckdrivers is inappropriate. There is
no history of collective bargaining at any of the Employer's plants.'
The Employer is engaged in the manufacture and sale of building
materials. Its manufacturing operations include the quarrying of
stone, crushing stone into assorted aggregates, precasting various con-
crete forms, mixing and delivering ready-mix concrete, and fabricating
steel. Prior to the acquisition on November 1, 1956, of the plants in the
Palm Beach area from Burnup & Sims, the Employer's entire business
consisted of, its 10 plants in the Miami area.' Top supervision of the
operations at the 10 plants is lodged in an executive vice president.
Subject to his authority and directly responsible to him, are a vice
president in charge of production and engineering, a vice president in
charge of sales, a vice president and treasurer in charge of financial
affairs, and a director of personnel. Apparently comprising a lower
echelon of supervision, are a number of divisional vice presidents in
more immediate control of operations at one or more of the Miami
plants. Subordinate supervision is exercised by individual plant man-
agers, plant superintendents, and foremen. The formulation and ad-
ministration of personnel policies for the Miami area plants, subject
to the authority of the executive vice president, is the exclusive prov-
ince of the personnel director. As part of his duties and responsibil-
ities, the personnel director establishes job classifications, interviews
applicants for employment and, except for the Wilton Manor plant,
hires all employees. Rates of pay established for specific job classifi-
cations are uniform for all Miami plants. All payrolls are prepared at'
the Employer's central accounting offices and payment of all wages
is made from such offices. With some exceptions,4 labor policies are
uniform throughout the 10 plants and all employees share the same
vacation and fringe benefits.
With the acquisition of the Palm Beach County plants, the Employer
sought to effect a measure of integration between the Palm Beach and
Miami plants, and to institute some central control. Certain account-
ing activities at Palm Beach were brought under central office super-
vision. Some safety engineering aid was also extended. Workmen's
compensation, employee surety bonds, and motor -vehicle insurance
were brought under coverage of plans in effect in Miami. Inventory
, 2 Ian earlier proceeding , Case No. 10-RC-3039 ( issued June 15, 1955. not reported In.
printed volumes of Board Decisions and Orders ), the Board found a unit of truck-
drivers at the 10 plants herein involved to be appropriate In another proceeding, Case
No. 10-RC-2561 ( issued December 30, 1953 , not reported in printed volumes of Board
Decisions and Orders), the Board found a unit of all production and maintenance em-
ployees at the same 10 plants appropriate It appears , however, that the Petitioner
was not a party to the latter case and that a separate unit of truckdrivers was not sought
30f the 10 plants, the 1 apparently farthest north from the Miami area is the Wilton
Manor plant near Fort Lauderdale some 20 miles from Miami , Florida
*Truckdrivers, and a few other employees who drive trucks as an incidental part of
other job functions , are eligible to, and do, received safety bonuses . Employees who
come in contact with the public are furnished company uniforms
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accounts were consolidated and some surplus items exchanged. Sen-
iority for all employees was made companywide.
However, in other respects, the Palm Beach operation retained its
separate identity. Thus, complete supervision of the operation, sub-
ject only to the authority of the executive vice president, continued in
the hands of local management officials.' No apparent change has
been made in local job classifications or in working conditions.6 Hir-
ing, apparently done locally, continues to be the responsibility of local
management officials. In addition, no interchange of employees has
taken place.
In view of the foregoing circumstances, particularly the substantial
measure of autonomy exercised by the Palm Beach County plants, the
different conditions of work prevailing there, the lack of employee
interchange, the substantial distance separating the Palm Beach
operation from the Miami operation,' the absence of any bargaining
history, and the fact that no labor organization is seeking a broader
unit, we find that a unit confined in scope to the employees of the Miami
area plants is appropriate.8
Alternatively, the Employer contends that, because of integration,
centralized control, and common interests, a unit limited to the truck-
drivers is inappropriate, and that only a unit of all production and
maintenance employees at the 10 plants is appropriate. The Employer
employs .700 production and maintenance employees at its Miami
plants. Of these employees, 252 are classified as truckdrivers. They
are engaged essentially in hauling materials and supplies either within
or between the Employer's plants and in making deliveries to the
Employer's customers. They drive different types of vehicles depend-
ing on the nature of the operations of the plant to which they are
assigned. Between deliveries or at the completion of their daily
driving assignments or on Saturdays, when deliveries are not usually
scheduled, truckdrivers may perform a variety of other tasks, such
as warehousing. work, operating fork lifts, cleaning and caring for
their trucks and equipment, painting, or production work. Most
truckdrivers are hired as experienced drivers. Promotions to more
5 Seven of the eight plants acquired , which were originally known as the CBS Division
of Burnup & Sims , and later designated as the CBS Division of Maule Industries, Inc ,
were placed under the supervision of the former Burnup & Sims ' vice president in charge
of sales The eighth plant originally known as Burnup & Sims of Del Ray , Inc, and
later designated as the Del Ray Plant of Maule Industries , Inc, was placed in charge
of the Burnup & Sims' former president and general manager.
' For example , whereas all drivers in the Miami area aie eligible to, and do receive, safety
bonuses, such bonuses at the Palm Beach plants are limited to the drivers in the con-
crete department and to 1 of 3 drivers in the steel department Furthermore, the con-
crete drivers at the Palm Beach plant receive a yardage bonus, a type of bonus unknown at
Miami plants
4 Although the record fails to specify the distance separating the Miami area plants
from the Palm Beach area plants , we take judicial notice of the fact that the distance
separating the Palm Beach area from the nearest plant of the Miami group , the Wilton
Manor plant at Fort Lauderdale , is approximately 42 miles.
8 Wells Cargo, Inc, 116 NLRB 1248. Sehwein Engineering Co , 114 NLRB 173
MAULE INDUSTRIES, INC. 1713
skilled production jobs are available to them. Truckdrivers, together
with other employees, have companywide seniority and share the same
benefits and general conditions of employment. However, as pre-
viously indicated, truckdrivers are eligible to receive safety bonuses
and comprise the principal group of employees who are furnished free
uniforms.
Although the time spent in driving and in other activities may vary
from operation to operation and from employee to employee, it ap-
pears that truckdrivers on the average spend approximately 70 to
75 percent of an average 9- to 11-hour working day in actual driving
and in loading and unloading their vehicles.9 Such testimony as was
presented by the Employer showed, for example, that some dump
truckdrivers hauling aggregates spend from 45 to 50 percent of their
time in actual driving, whereas other dump truckdrivers may spend
as much as 70 to 80 percent of their time behind the wheels of their
trucks and perform few, if any, nondriving chores. Loading of dump
trucks may require 20 to 30, percent of a driver's time depending on
whether loading is by hand, by crane, or by conveyer belt.10 Addi-
tional time is also spent by drivers in waiting at the office for their
delivery tickets, and in waiting at job sites to deliver their material.
In precast operations, where flatbed trucks are principally used, truck-
drivers are said to spend approximately 25 to 30 percent of their
working time in actual driving, an additional 15 percent in obtaining
their delivery tickets, and about 60 percent of their time in loading
and unloading their trucks. Loading of such trucks was estimated to
require an average of 45 minutes to an hour, and unloading some 30
to 35 minutes, particularly where the trucks are equipped with auto-
matic unloading machinery. As to concrete mixer drivers, the testi-
mony showed that such drivers spend about one-third of their time
in actual driving and the remaining two-thirds at the plant or at the
job site. The loading of such vehicles customarily takes no more
than 15 minutes but the delivery of their contents may take anywhere
from 25 minutes to 4 hours depending on the nature of the concrete
pour at the job site. Concrete mixer drivers also spend a few minutes
each day in washing down their trucks.
The Board has recently reaffirmed its position that truckdrivers
who spend a major part of their time in "actual driving," constitute
a functionally distinct group entitled to separate representation.ll In
so doing, the Board made it clear that it considered as part of "actual
9 The Employer's representative stated at the hearing that the Employer was not in a
position to estimate percentages of time spent by the drivers in various activities with
any degree of accuracy as no detailed records of such time were kept.
io Sometimes , in the absence of the conveyer belt operator , a driver operates the con-
veyer system.
11 Painesville Works, General Chemical Division , Allied Chemical and Dye corporation.
116 NLRB 1784; Interchemical Corporation , 116 NLRB 1443.
423784-57-vol 117-109
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
driving," the time spent by a driver in loading and unloading his
truck, an activity which is a normal incident of his duties as a driver.
As the record in this case clearly establishes that the truckdrivers
sought by the Petitioner spend a major portion of their time in the
performance of their primary function as drivers, we find, apart from
any question of the extent of organization, that the truckdrivers
constitute a functionally distinct group and are entitled to separate
representation.
The Employer also contends that the requested unit is inappropriate
because it does not include all employees who drive trucks. While
it is true that some production employees may on occasion drive
trucks in order to fulfill certain delivery requirements, the record
nevertheless establishes that the occasions are relatively few in number
and are limited to situations more or less of an emergency nature.
Moreover, there is no established practice to interchange production
employees with truckdrivers. As it is clear that such employees do
not spend a major portion of their time driving trucks, and as their
interests are more closely allied with production and maintenance em-
ployees, their exclusion from a unit of truckdrivers is proper.
The Employer similarly contends that the unit is inappropriate be-
cause of the exclusion of certain tire men whose duties may require
them to drive trucks.12 The evidence shows that such employees are
not primarily engaged in driving trucks for the purpose of hauling
the Employer's product but merely as an incidental means of enabling
them to perform their own duties as truck servicing employees. Al-
though as drivers of trucks they are eligible to receive safety bonuses
as an incentive to safe driving, we find that their interests are pri-
marily those of production and maintenance employees rather than
those of truckdrivers. In these circumstances, we find that their ex-
clusion from a unit of truckdrivers is proper.
There remains a question as to the inclusion of certain general labor
helpers in the unit of truckdrivers. Among its common laborers, the
Employer has a number of employees who at times accompany truck-
drivers when making deliveries. They help load and unload the
trucks. There is also evidence that among them are some 37 em-
ployees, distributed among 7 of the 10 plants, who spend at least 50
percent of their time in "driving, delivering, or truck unloading
duties." In addition to such truck duties, these employees also peir-
form general labor work about the plants and warehouses. As it ap-
pears that the 37 employees spend a major portion of their time in
regular assignments as helpers on trucks, we shall include them in
the unit.
13 Similar contentions are made with respect to other maintenance employees who drive
trucks as an incident of their regular jobs, which we also find to be without merit.
INGERSOLL-HUMPHRYES DIVISION 1715
Accordingly, we find that all truckdrivers and their regularly as-
signed helpers at the Employer's 10 plants in the Miami, Florida, area,
excluding all other employees, office clerical employees, professional
employees, guards, and supervisors as defined in the Act constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RoDGERS took no part in the consideration of the above De-
cision and Direction of Election.
Ingersoll -Humphryes Division , Borg-Warner Corporation and
International Brotherhood of Operative Potters, AFL-CIO,
Petitioner. Case No. 8-RC-2818. May 22,1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Edward A. Grupp, 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 organizations involved claim to represent employees
of the Employer.'
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following reasons :
The Petitioner seeks a unit of production and maintenance employees
in the Employer's vitreous china sanitary ware division in Mansfield,
Ohio. The Employer and the Intervenor contend that their contract
is a bar to the petition.
Following certification of the Intervenor in November 1954,2 the
Employer's predecessor, The Humphryes Manufacturing Company,
entered into a collective-bargaining agreement with the Intervenor
on March 21, 1955, which covered the production and maintenance em-
ployees of the predecessor company's enamelled cast iron division.
This agreement was to run until September 21, 1956, and be automati-
cally renewable for yearly periods thereafter unless notice was given
IInternational Union of Electrical, Radio and Machine Workers, Local 719, AFL-CIO,
herein called the Intervenor, intervened on the basis of its contract with the Employer
covering, inter ahos, the employees involved herein.
2 Case No 8-RC-2344 (not reported in printed volumes of Board Decisions and Orders).
117 NLRB No. 226.