Mc-Mor-Han Trucking Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 700 (N.L.R.B. 1967)

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mc-Mor-Han Trucking Co., Inc. and General
Drivers , Dairy Employees and Helpers Union
Local 579, affiliated with the International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Peti-
tioner. Case 30-RC-567
June 30, 1967
DECISION ON REVIEW
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 23, 1967, the Regional Director for
Region 30 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding in which he
found appropriate a combined unit of truckdrivers
and mechanics. Thereafter, the Petitioner in ac-
cordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Se-
ries 8, as amended, filed with the National Labor
Relations Board a timely request for review of such
Decision and Direction of Election, contending that
the Regional Director erred in including mechanics
in the requested unit of truckdrivers. The Employer
also filed a timely request for review, asserting that
substantial issues of law or policy were raised with
respect to other findings made by the Regional
Director in his Decision.
The Board, by telegraphic order dated February
14, 1967, granted the Petitioner's request for
review, denied the Employer's request for review,
and stayed the election. Thereafter, the parties filed
briefs on review. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board delegated its powers in connection with this
case to a three-member panel.
The Board has considered the entire record in
this case with respect to the issues under review, in-
cluding the briefs of the parties, and makes the fol-
lowing findings:
The Petitioner seeks a unit limited to the
truckdrivers. The Employer contends that the only
appropriate unit should include both the
truckdrivers and the mechanics. The Regional
Director, upholding the position of the Employer,
found that only the combined unit of truckdrivers
and mechanics was appropriate. There is no prior
history of bargaining for any of the Employer's em-
ployees and no labor organization is seeking to
represent the truckdrivers in a broader unit.
The Employer is engaged in the over-the-road
transportation of fluid milk within the States of
Wisconsin, Illinois, and Indiana, operating a fleet of
diesel tank trucks for this purpose.''-' Its only ter-
minal facilities are located at Shullsburg, Wisconsin,
and consist of an office, an employees' room, and a
garage for the maintenance and repair of the Em-
ployer's trucks and, to a lesser extent, those of its
customers. There are approximately 34 regular full-
time employees, including 24 over-the-road
truckdrivers, 7 mechanics, and I employee who
works regularly as a combined partsman and
mechanic and, occasionally, as a substitute driver.
The remaining two employees are office clerical
employees who were excluded from the unit by
agreement of the parties.
The record shows that the truckdrivers have no
regular starting time and work from 10 to 18 hours
per day, 5 days per week. However, as the
truckdriving is a continuous operation, the particu-
lar 5 days which each driver works and the 2 days
he has off duty vary from week to week. The
drivers are usually paid on a mileage basis, but
those assigned to "short runs" are paid a weekly sal-
ary so that they will be adequately compensated for
the large amount of waiting time invoived in their
work. None of the drivers receives premium pay for
overtime. All the drivers are certified by the In-
terstate Commerce Commission, and ICC regula-
tions control many aspects of their employment.
The drivers do not perform mechanical work, ex-
cept for minor repairs or adjustments on their
trucks while out on the road and, on rare occasions,
at the garage.3 Other than these rare occasions,
truckdrivers are prohibited from entering the shop
area where mechanics regularly work, pursuant to
the provisions of a notice recently posted by the
Employer.
The mechanics have a normal schedule from 7:30
a.m. to 5.30 p.m., Monday through Friday, and un-
til noon on Saturday. When emergency situations
arise, they work additional hours or days for which
they receive overtime premiums. They are paid on
an hourly basis and, since December 1966, have
punched a timeclock, being the only employees of
the Employer who do so. The mechanics are also
the only employees who wear uniforms, and these
I The Employer did not file a brief on review within the period allowed
therefor by the Board's Rules and Regulations. However, on March 2,
1967, the Employer filed with the Board a request for special permission
to file a statement in response to Petitioner's brief In the absence of ob-
jections by the Petitioner, the Board granted the request and, pursuant
thereto, the Employee filed its brief on March 13, 1967,
The Employer is also a franchised General Motors Trucking Corpora-
tion dealer and, in connection therewith, sells trucks and truck parts and
performs repair work for customers. The Employer asserts that this con-
stitutes only a minor portion of its business
' Infrequently, and only after obtaining permission, a driver may do
some work on his own assigned vehicle at the garage Thus, the Em-
ployer's witness, truckdriver Glenn E Kinch, stated that he has done
garage work such as changing a tire, aligning a wheel, and helping a
mechanic "pull a wheel," However, his testimony indicates that these are
not frequent occurrences, there having been intervals of I to 2 months
between the occasions on which he has performed such work
166 NLRB No. 44
MC-MOR-HAN TRUCKING CO. 701
are supplied by the Employer. Most of their work
is performed in the garage.
The regular full-time mechanics do not do any
over-the-road hauling of milk, which is the primary
job function of the truckdrivers. Richard Walters,
the combination partsman and mechanic, hauls milk
on occasion, but only as a substitute on an irregular
and infrequent basis, as further discussed infra.
There are some truckdriving duties which the regu-
lar mechanics perform; however, they are limited to
the bringing of vehicles into the garage for service
and road testing them, functions which are directly
related and incidental to the mechanics' repair and
maintenance responsibilities.
The Employer's hiring qualifications for drivers
are separate and distinct from its requirements for
mechanics. The former are judged on the basis of
their driving experience and need have no special
mechanical background, while the latter are hired
on the basis of their particular mechanical skills and
experience. There is no indication in the record that
employees normally progress from mechanic to
truckdriver, or vice versa.4
The truckdrivers and mechanics are currently
working under common supervision, although, until
July 1966, it had been separate. All employees, in-
cluding the excluded office employees, share the
same vacation, hospital, medical, life insurance, and
Christmas bonus benefits. They also make common
use of the employees' room, although the
truckdrivers' usage of this facility is limited because
most of their time is spent away from the terminal.
Based upon all the foregoing, we are unable to
concur with the Regional Director's conclusion that
only a combined unit of the Employer's
truckdrivers and mechanics is appropriate. The Re-
gional Director relied primarily on the Board's
Decision in Marks Oxygen Company of Alabama,
147 NLRB 228. That precedent is inapposite. In
Marks Oxygen the issue was not whether a separate
unit of truckdrivers was inappropriate, as in the
present case, but rather whether a requested unit
combining truckdrivers with production and main-
tenance employees was appropriate. The Board
found that the more comprehensive unit there was
an appropriate unit, but did not find that it was the
only appropriate unit or that a unit limited to
truckdrivers, if requested, would be inappropriate.
While so ruling, the Board also specifically reaf-
firmed its previous policies of not compelling labor
organizations to seek representation in the most
comprehensive grouping and of recognizing the
desires of petitioners as being a relevant considera-
tion in the making of unit determinations. A fair
reading of Marks Oxygen indicates that in a given
plant, depending upon the community of interest of
the employees involved and the desires of the peti-
tioning labor organization, truckdrivers may be
represented either separately or as part of a more
comprehensive unit. In any event, it is not the
Board's function to compel all employees to be
represented or unrepresented at the same time or to
require that a labor organization represent em-
ployees it does not wish to represent, unless an ap-
propriate unit does not otherwise exist.5
The facts of this case do not reveal such a com-
munity of interest or degree of integration between
the truckdrivers and the mechanics as would render
the requested truckdriver unit inappropriate. On the
contrary, the traditionally distinct functions and in-
terests of truckdrivers are clearly present here.
They perform a function-the over-the-road haul-
ing of milk-which is both different and separate
from the work performed by the mechanics.
Further, the regularly assigned road trips of the
drivers require that they spend a substantial majori-
ty of their working time away from the terminal,
thus considerably limiting their work contacts with
the mechanics. Finally, except for the infrequent
driving assignments of Walters, there is no in-
terchange between the two employee groups, their
job classifications are dissimilar, and there are sub-
stantial differences in their compensation, hours,
and other conditions of employment. While there
are also some employment interests which both
groups share-identical insurance and holiday
benefits and their current common supervi-
sion-these factors are not so significant as to
require the inclusion of all the employees in a single
unit.
Under circumstances similar to those extant
herein, the Board has consistently held that
truckdrivers comprise a functionally distinct group
which may constitute a separate appropriate unit
where, as here, a union seeks to represent them
separately, there is no bargaining history, and no
labor organization seeks to represent them in a
broader units Therefore, we conclude from the en-
' During the 14 years the Employer has been in business, only three
employees, Metz, Schoenhardt, and Walters, have changed job classifica-
tions Except for Schoenhardt, who is no longer employed, it was not
shown that the changes in status were on a direct transfer basis.
Schoenhardt worked as a truckdriver around 1962, but resigned Two
years later he was rehired as a mechanic and subsequently returned to
truckdnving duties He last terminated his employment with the Em-
ployer in 1965
Metz worked for the Employer as a truckdnver until quitting in 1961
Thereafter he became a certified welder and was rehired as a mechanic in
November 1966.
Walters last worked as a regular truckdriver about 9 years ago Some-
time thereafter, in circumstances not shown by the record, he became a
mechanic and still later was also placed in charge of the parts department
He occasionally substitutes as a truckdriver in emergencies and when the
full-time drivers are absent
Ballantine Pac king Co , Inc, 132 NLRB 923, 925.
Ballannne Packing Co , Inc , supra, and cases cited therein, see E H.
Koester Bakery Company, Inc., 136 NLRB 1006, 1011; of E. I Dupont
DeNemours and Company (May Plant), 162 N LRB 413.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tire record in this case that the Employer's
truckdrivers enjoy a sufficient community of in-
terest separate and apart from the mechanics to
warrant finding them to be a unit appropriate for
collective bargaining.7
There remains for determination only the
question as to the unit placement of the multiple-
function employee, Walters, who occasionally
drives a truck and whom the Employer would in-
clude in a truckdrivers' unit. Walters is primarily in-
volved in running the Employer's parts department
and in performing mechanic's duties. Walters works
on the same schedule as the mechanics and wears
a mechanic's uniform supplied him by the Em-
ployer. He receives a weekly salary which is not af-
fected by the nature of the job classifications in
which he may work in any particular week, except
that when substitute truckdriving duties occur on a
Saturday afternoon or a Sunday, outside of his regu-
lar hours, he is paid additional compensation on a
trip basis. Walters' employment record shows that,
during 1966, he did some truckdriving on all of, or
part of, 20 days. These 20 days ranged throughout
the year, but had no regularity, pattern, or con-
sistent schedule. It is further noted that there were
frequently periods in excess of I month between his
driving assignments, and there were a total of 6
months in which he was not given any driving as-
signments at all. We find, on the basis of the forego-
ing and contrary to the Employer, that Walters does
not perform a sufficient amount of work in the
truckdriver unit to demonstrate that he has a sub-
stantial interest in the unit's wages, hours, and con-
ditions of employment, and he is, accordingly,
excluded.'
On the basis of the foregoing and the record as a
whole, we find that the following employees con-
stitute a unit appropriate for collective-bargaining
purposes:
All truckdrivers employed by the Employer at its
Shullsburg, Wisconsin, terminal, excluding
mechanics, casual employees, the parts department
employee, office clerical employees, technical em-
ployees, guards, and supervisors as defined in the
Act, as amended.
Accordingly, the case is remanded to the Re-
gional Director for Region 30 for the purpose of
conducting an election pursuant to his Decision and
Direction of Election, as modified herein, except
that the payroll period for determining eligibility
shall be that immediately preceding the date of
this Decision on Review."
' Archie`s Motor Freight, Inc, 130 NLRB 1627, 1629; Chemical Ex-
press, 117 NLRB 29
8 Cf Berea Publishing Company, 140 NLRB 516, 518-519; Haag
Drug Company, Incorporated, 146 NLRB 798, 800
" An amended election eligibility list, containing the names and ad-
dresses of all the eligible voters , must be filed by the Employer with the
Regional Director for Region 30 within 7 days after the date of this Deci-
sion on Review. The Regional Director shall make this list available to all
parties to the election. No extension of time to file this list shall be granted
by the Regional Director except in extraordinary circumstances Failure
to comply with this requirement shall be grounds for setting aside the elec-
tion whenever proper objections are filed. Excelsior Underwear Inc , 156
NLRB 1236