Pacesetter Corp.

National Labor Relations Board - Board Decisions

Apr 25, 1979

241 N.L.R.B. 1150 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacesetter Corporation and United Steelworkers of
America, AFL-CIO-CLC, Petitioner and General
Drivers and Helpers Union Local No. 554, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Petitioner.' Cases 17 RC-8652 and 17 RC
8658
April 25, 1979
DECISION ON REVIEW AND DIRECTION OF
ELECTIONS
BY MEMBLRS PENELI.O, MURPHY, AND TRUESDAI.E
On December 22, 1978, the Regional Director for
Region 17 issued a Decision, Order, and Direction of'
Election in the above-entitled proceedings in which
he dismissed Teamsters petition on the basis that the
requested unit of' truckdrivers was inappropriate in
view of a history of bargaining for a broader unit
between the Employer and Pacesetter Employee-
Management Better Relations Committee, herein
called BRC; and he directed an election in the
broader plantwide unit petitioned for by Steelwork-
ers. Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and Regu-
lations, Series 8, as amended, Teamsters filed a timely
request for review of the Regional Director's decision
on the ground that he erred in finding its requested
unit of truckdrivers to be inappropriate.
By telegraphic order dated January 17, 1979,
Teamsters request for review was granted and the
election stayed pending decision on review.2
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 Board has considered the entire record in this
case with respect to the issues under review and
hereby reverses the Regional Director's decision to
dismiss Teamsters petition for the following reasons:
The Regional Director. pointing to the facts that
BRC was certified by the Board in December 1975 as
representative of a unit of the Employer's production
and maintenance employees, including truckdrivers,
and that it negotiated a contract in the overall unit,
effective February 1, 1976, to January 31, 1979. con-
cluded that there were no compelling circumstances
I Petitioners are referred to herein as Steelworkers and Teamsters. respec-
tively.
I In the same order the Board denied the Employer's request for review of
the Regional Director's decision relating to other matters as well as its mo-
tion to reopen the record. On Januar) 18. 1979, the Employer filed with the
Board a letter with attached affidavits in support or its request for review.
These suhmissions. because they were received after issuance of the Board's
order, were not considered.
to warrant departure from the established bargaining
relationship. We disagree.
As found by the Regional Director. BRC, the in-
cumbent representative, has disclaimed interest in
these proceedings. Its representation of the employees
involved in an overall unit has therefore come to an
end, and for this reason, significantly less weight
should be given to the approximately 2-year bargain-
ing history on the basis of that unit in the determina-
tion of whether the requested unit of truckdrivers
may be appropriate. By the same token other factors
bearing on the community of interest of the
truckdrivers herein are entitled to more weight than
was given them by the Regional Director.
The Employer, which manufactures storm win-
dows and doors at its Omaha, Nebraska, plant, em-
ploys about 120 production and maintenance em-
ployees and 7 truckdrivers. The truckdrivers
transport the Employer's manufactured products
from the plant to various cities in the central and
southern parts of the United States. Trailers are
loaded by a shipping crew. The drivers are available
for trips on a 7-day-a-week basis and receive their
assignments from a dispatcher.3 The drivers report to
the plant at the scheduled departure time, spend
about a half hour inspecting the equipment and pick-
ing up necessary papers, and drive their loaded vehi-
cles to their destinations. Deliveries outside the
Omaha area require overnight trips, and on such trips
drivers receive allowances for food and lodging. Oc-
casionally, they make backhauls of materials for the
Employer. 4 The drivers must comply with regulations
of the Interstate Commerce Commission and the De-
partment of Transportation. Drivers are paid an
hourly rate and receive the same fringe benefits as
production and maintenance employees.
Although the Employer's vice president in charge
of manufacturing testified that, when conditions war-
rant, its drivers are assigned to work in the plant, he
conceded that this has not happened in 18 months.
From the foregoing, it is evident that the Employ-
er's truckdrivers spend virtually all of their time in
over-the-road truckdriving duties and do not inter-
change with production and maintenance employees.
We find, therefore, that the truckdrivers have a sub-
stantial community of interest separate and apart
from the broader one they share with production and
While the drivers are under the supervision of the plant manager, who
has the authority to hire and fire them, there was testimon) that it is the
dispatcher who selects the truckdriver for each run; as well as hearsa) testi-
mony that he had fired a driver. Hloweer, as the latter testimon) s not
corroborated and it is unclear from the record whether the dispatcher's as-
signment of runs involves the use of independent judgment. we are unable to
determine. on this record, whether or not he is a supers isor as defined in the
Act.
' On rare occasions dnvers may assist in unloading, and on occasion may
assist in loading of matenals for backhauls.
241 NLRB No. 177
1150o
PACESETTER CORPORATION
maintenance employees, and that they comprise a
traditional grouping of employees which, in the ab-
sence of a history of bargaining on a broader basis,
the Board has found to be appropriate for collective
bargaining. And inasmuch as BRC has disclaimed in-
terest in these proceedings, the history of its represen-
tation of a plantwide unit does not preclude a finding
that a unit of the truckdrivers may be appropriate at
this time.'
Accordingly, as Steelworkers seeks to represent the
unit for which BRC was certified, and Teamsters
wishes to represent the truckdrivers alone, who we
find in the circumstances may also constitute an ap-
propriate unit, we shall direct self-determination elec-
tions in the following voting groups:
(a) All full-time and part-time production and
maintenance employees of the Employer at its
facility at 4343 South 96th Street, Omaha. Ne-
braska, excluding truckdrivers. office clerical em-
ployees, professional employees, guards and su-
pervisors as defined in the Act.
(b) All truckdrivers of the Employer, exclud-
ing all other employees.
Cf. Kalamazoo Paper Box Corporation, 136 NLRB 134 (1961).
If a majority in voting group (b) selects Teamsters,
these employees will have indicated their desire to
constitute a separate unit which the Board, in such
circumstances, finds to be appropriate, and the Re-
gional Director will issue a certification of representa-
tive to Teamsters. If a majority in voting group (b)
vote for Teamsters, and a majority in voting group (a)
vote for Steelworkers, the Regional Director will issue
a certification of representative to Steelworkers for a
unit of those employees which the Board, in those
circumstances, finds appropriate. However, if a ma-
jority in voting group (hb) do not vote for Teamsters
the votes of both groups will be pooled, 6 and if a
majority of the pooled groups selects Steelworkers the
Regional Director will issue it a certification of repre-
sentative for a unit of employees in such groups
which the Board in those circumstances finds to be
appropriate.
[Direction of Elections and Excelsior footnote
omitted from publication.]
If the oltes are pooled the votes for Teamsters shall be counted as valid
votes but neither for nor against Steelworkers; all other votes are to be
accorded their face value, whether for representation by Steelworkers or for
no union.
1151