Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Jun 30, 2000

331 N.L.R.B. 662 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 662
Overnite Transportation Company and International
Brotherhood of Teamsters, AFL–CIO, Local
Union No. 28, Petitioner. Case 11–RC–6258
June 30, 2000
DECISION ON REVIEW AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On April 7, 1998, the Regional Director for Region 11
issued a Decision and Direction of Election in which he
found that the petitioned-for unit of approximately 159
dockworkers and 22 jockeys (hostlers) was not appropri-
ate and that the unit must also include city drivers, road
drivers, check bay attendants, tire changers, maintenance
workers, janitorial workers, “OS&D (overage, shortage,
and damage)” clerks, and operations clerks—essentially
a service center unit of approximately 351 employees,
excluding only mechanics and mechanic leadmen.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Petitioner and the Employer filed timely requests for
review of the Regional Director’s decision. The Peti-
tioner contended that the petitioned-for unit is an appro-
priate unit. The Employer contended that the Regional
Director should have found appropriate a wall-to-wall
unit. On June 9, 1998, the Board granted the Petitioner’s
and Employer’s requests for review.1 Neither party filed
a brief on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record in this
proceeding, we conclude that the smallest appropriate
unit that includes the petitioned-for dockworkers and
jockeys must also include substantially all employees
who are unskilled and work exclusively at the service
center. Thus, we find that the dockworkers and jockeys,
and the facility maintenance employees, and janitors,
excluding drivers, mechanics, mechanic leadmen, and
their helpers (check bay attendants, tire changers and
parts clerks), constitute an appropriate unit. As the evi-
dence is insufficient to determine whether the OS&D
clerks, the operations clerks, and the shop clerk are plant
or office clericals, we shall permit them to vote under
challenge.
I. FACTS
The Employer is a freight carrier operating 170 service
centers throughout North America, including its service
center in Gaffney, South Carolina. Freight is transported
to the Gaffney service center from the other service cen-
ters. Trucks from Gaffney then transport goods to other
service centers or to the Employer’s individual custom-
ers. The employees in issue largely work in the terminal
building area (warehouse, dock, and main office), the
shop building area (tractor-trailer shop, wash and check
bays, road dispatch office, and “bunk house” for out-of-
town road drivers), or the yard.

1 The Board’s Order denied the Petitioner’s request to stay the elec-
tion and denied the Employer’s request for review of the Regional
Director’s Order Postponing the Election. The election is currently
blocked by pending unfair labor practice proceedings.
Dockworkers perform the loading and unloading of
outbound and inbound trailers that are positioned at the
dock. Jockeys move the trailers around the yard using a
“jockey wagon” so that the trailers can be unloaded or
loaded and then attached to a designated tractor. The
Employer’s “work measurement” reports classify the
work of the jockeys and dockworkers as “dock work.”
Two facility maintenance employees perform routine
maintenance on the physical plant, while four janitors
perform cleanup duties in the buildings. The mechanics
and the parts clerks work in the shop building area where
the shop supervisors are located. Mechanics perform
repairs on the tractors and trailers, while nearby in the
check and wash bays check bay attendants perform rou-
tine maintenance on the tractors.2
Jockeys, dockworkers, check bay attendants, mainte-
nance employees, and janitors do not possess any special
skills or qualifications, but all drivers (city or road) must
possess a commercial driver’s license (CDL) and meet
U.S. Department of Transportation regulations for driv-
ing. Mechanics receive highly specialized training and
education, and must provide their own tools.
Unlike all other service center employees, city and
road drivers spend virtually their entire workday away
from the service center. City drivers make local pickups
and deliveries to customers within a 35-mile radius of the
terminal, while road drivers transport freight to distant
service centers. Road drivers receive dispatches from the
Gaffney road dispatchers and also may communicate
with the Employer’s central dispatch in Richmond, Vir-
ginia. City drivers service designated local routes and
carry Employer-issued beepers for dispatching on the
road by Gaffney dispatchers.
There is companywide seniority for layoffs, but the
routes of the drivers and the shift times of all employees
(except road drivers, who do not have shifts per se) are
assigned according to separate seniority within each clas-
sification.3 All employees are paid hourly except for
road drivers, who are paid based on mileage. Wage and
benefit levels are similar for all the hourly employees,
except janitors, who receive nearly $4 per hour less than
all other employees. Supervisors and managers hold
meetings with separate groups of city drivers, road driv-
ers, jockeys, and dockworkers.
2 Although the record contains no evidence regarding the precise du-
ties of tire changers, the Employer does not dispute the Regional Direc-
tor’s finding that the Employer has an “unspecified number of employ-
ees assigned to change tires on the tractors and trailers at the Gaffney
facility,” and that tire changers share common supervision with check
bay attendants.
3 It appears that city drivers have seniority lists for shifts and for
route assignments.
331 NLRB No. 85
OVERNITE TRANSPORTATION CO. 663
Very few of the dockworkers (7 of 159) and jockeys (3
of 22) possess CDLs necessary to perform driving duties.
Most of these employees drive voluntarily and on their
day off. Two of the dockworkers who possess a CDL
work on the dock in the morning and perform city driv-
ing each afternoon. An unspecified number of mechan-
ics have a CDL and occasionally perform local deliver-
ies. Road and city drivers perform incidental amounts of
dock work or jockey-like work at the Gaffney terminal.
Mechanics perform duties of the check bay attendants
during periods when the attendants are not scheduled to
work. There was testimony that 70 percent of city driv-
ers and 50 percent of road drivers formerly served as
dockworkers or jockeys. Except for layoffs,4 all perma-
nent transfers of employees have been voluntary.
Some supervisors have “responsibility” for several
classifications of employees, or they may “supervise”
employees when the employees enter their area of the
facility. Thus, there is some common intermediate su-
pervision or “cross-supervision” of classifications. Clas-
sifications with separate immediate supervision are shop
personnel (mechanics, check bay attendants, parts clerks,
and, apparently, tire changers), and facility maintenance
and janitorial employees. It is not clear from the record
whether dockworkers, jockeys, and drivers have separate
immediate supervision.
II. ANALYSIS
The Regional Director found that the petitioned-for
unit of dockworkers and jockeys is not appropriate. He
also rejected the Employer’s proposed alternative of a
wall-to-wall unit. The Regional Director found a service
centerwide unit, excluding mechanics and mechanic
leadmen, to be appropriate. The Employer contends that,
after finding the petitioned-for unit is not appropriate, the
Regional Director should have found its alternative wall-
to-wall unit appropriate.
The Board’s procedure for determining an appropriate
unit under Section 9(b) is to examine first the petitioned-
for unit. If that unit is appropriate, then the inquiry into
the appropriate unit ends. If the petitioned-for unit is not
appropriate, the Board may examine the alternative units
suggested by the parties,5 and also has discretion to select
an appropriate unit that is different from the alternative
proposals of the parties. See NLRB v. Lake County Assn.
For the Retarded, 128 F.3d 1181, 1185 fn. 2 (7th Cir.
1997); State Farm Mutual Automobile Insurance Co. v.
NLRB, 411 F.2d 356, 358, 360–361 (7th Cir. 1969) (en
banc), cert. denied 396 U.S. 932 (1969). The Board gen-
erally attempts to select a unit that is the “smallest ap-
propriate unit” encompassing the petitioned-for em-

4 During a 1996 layoff, four or five road drivers exercised their
bumping rights to move into jockey positions.
5 See Overnite Transportation, 322 NLRB 723 fn. 1 (1996), Dezcon,
Inc., 295 NLRB 109, 111 (1989), and P. J. Dick Contracting, 290
NLRB 150, 151 (1988).
ployee classifications. See, e.g., R & D Trucking, 327
NLRB 531 (1999); State Farm Mutual Automobile In-
surance Co., 163 NLRB 677 (1967).
We find that the smallest appropriate unit encompass-
ing the petitioned-for classifications must include all
employees who, like the dockworkers and jockeys, are
unskilled and work exclusively at the service center.
Thus, in agreement with the Regional Director, we find
that the unit must include the facility maintenance em-
ployees and janitors since they do not possess a separate
community of interest from dockworkers and jockeys.
Further, although we agree with the Regional Director’s
exclusion of the mechanics from the unit, we disagree
with his inclusion of the drivers as explained below.
The unit we find appropriate is akin to a warehouse-
type unit, which usually includes unskilled shipping and
receiving employees, but may exclude drivers and me-
chanics. See, e.g., Nuturn Corp., 235 NLRB 1139, 1140
fn. 4 (1978); Cal-Maine Farms, Inc., 249 NLRB 944
(1980).
Thus, according to the Employer’s work measurement
reports, jockeys and dockworkers perform the common
function of “dock work,” which does not require special-
ized skills or training. Similarly, facility maintenance
employees and janitors possess no special skills or train-
ing to perform their routine tasks. Virtually all the em-
ployees in the unit we find appropriate spend their entire
workday at the service center performing duties within
their respective classifications. Only a small minority of
jockeys (3 of 22) and dockworkers (7 of 159) are quali-
fied to drive, and the record establishes that the amount
of driving they perform is de minimis.6 In addition, there
was considerable testimony that most dockworkers and
jockeys who drive do so voluntarily and on their days
off. Although 70 percent of city drivers and 50 percent
of road drivers formerly were dockworkers or jockeys,
the testimony also established that virtually all perma-
nent transfers are voluntary.7 See, e.g., Red Lobster, 300
NLRB 908, 911 (1990); Lipman’s, 227 NLRB 1436,
1438 (1977) (voluntary, permanent interchange given
less weight in unit determinations). In addition, dock-
workers and jockeys possess separate terms and condi-
tions of employment—significantly, they are the only
employees that can be sent home for lack of work. Fur-
ther, although there is some evidence of “cross-
supervision” of classications, there is also evidence of
separate immediate supervision. Thus, the evidence re-
garding supervision is insufficient to support the Em-
ployer’s contention that a wall-to-wall unit is the smallest
6 The Employer’s “work measurement reports,” which summarize
work “inside and outside” of classifications, establish that jockeys
performed over 40,000 hours of jockeying work during 1997 versus
only 20 hours of city driving during the same period. Dockworkers
performed over 270,000 hours of dock work versus 4269 hours of city
driving during this period.
7 The sole exception involved the 1996 layoffs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664
appropriate unit. Based on the community-of-interest
factors before us, we conclude that dockworkers, jock-
eys, facility maintenance employees, and janitors share a
community ofinterest separate and distinct from other
service center employees and therefore constitute an ap-
propriate unit.
We find that inclusion of the remaining classifications
of drivers, mechanics, mechanic leadmen, and mechanic
helpers, is not required. See, e.g., Pacemaker Mobile
Homes, 194 NLRB 742 (1971); and E. H. Koester Bak-
ery, 136 NLRB 1006, 1008 (1962) (inclusion of drivers
in more comprehensive units not required); Dodge City
of Wauwatosa, 282 NLRB 459 (1986); and Fletcher
Jones Chevrolet, 300 NLRB 875 (1990) (mechanics and
their helpers constitute appropriate craft unit). The driv-
ers perform a separate function and possess special skills
and qualifications. They work away from the facility
most of the day and do not have any overlapping duties
or interchange with jockeys, dockworkers, facility main-
tenance employees or janitors.8 In addition, most drivers
are paid a mileage rate, the only classification paid in this
manner. Although mechanics and mechanic leadmen
spend their entire day at the service center, they have
received specialized training and education, and the Re-
gional Director’s additional uncontradicted findings9

8 Although the Regional Director found that city drivers “regularly”
help and “typically” join dockworkers to load the city trucks, the driv-
ers’ trailers generally are loaded and ready to go when they arrive for
work. In addition, the work measurement reports for 1997 recorded
only 68 hours of loading, compared to over 20,000 hours of driving, by
city drivers. The Gaffney road drivers perform no loading or unloading
at the Gaffney service center. Although the reports record 989 hours of
loading and unloading at other terminals by the Gaffney road drivers,
there is no evidence of the actual number of drivers involved, and we
deem the amount of hours insubstantial given the large (128) number of
Gaffney road drivers.
9 In addition to specialized training, the Regional Director found that
the mechanics supply their own tools, have separate supervision, have
establish that they would constitute a separate appropri-
ate unit. Dodge City of Wauwatosa, supra. Although the
mechanic helpers (parts clerks, check bay attendants, and
tire changers) are unskilled, they perform functions with
the mechanics related to the repair and maintenance of
the tractors and trailers, and share supervision with me-
chanics. We conclude that drivers, mechanics, mechanic
leadmen, and mechanic helpers do not share a sufficient
community of interest with dockworkers, jockeys, facili-
ties maintenance employees and janitors to mandate their
inclusion in the unit.
Finally, we find the evidence is insufficient to deter-
mine whether the OS&D clerks, operations clerks, and
shop clerk are plant or office clericals. We, therefore,
permit them to vote under challenge.
III. CONCLUSION
We reverse the Regional Director’s finding that the
appropriate unit must include all classifications, except
the mechanics and mechanic leadmen. Instead, we find
that the dockworkers, dock leadmen, jockeys (hostlers),
facility maintenance employees, and janitors are an ap-
propriate unit in which the election should be held. In
addition, we permit the OS&D clerks, operations clerks,
and shop clerk to vote under challenge.
ORDER
The Regional Director’s Decision is reversed, and his
Direction of Election is vacated. This proceeding is re-
manded to the Regional Director for further appropriate
action.

infrequent contact with other employees, and interchange only with the
check bay attendants.