Rockingham Poultry Marketing Cooperative, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1969

174 N.L.R.B. 1278 (N.L.R.B. 1969)

1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rockingham Poultry Marketing Cooperative, Inc.'
and General Teamsters, Chauffeurs,
Warehousemen & Production Workers, Local
Union No. 29 , affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America ,' Petitioner.
Case 5-RC-6518
March 19, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officers John L.
Kluttz and Donald J. Salins.' Following the hearing
and pursuant to Section 102.67 of National Labor
Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended, and
by direction of the Regional Director for Region 5,
this case was transferred to the National Labor
Relations Board for decision. Briefs were thereafter
filed by the Employer, the Petitioner, and by
Amalgamated Meat Cutters and Allied Workers of
North America, AFL-CIO, Local 593 (the
Intervenor), which intervened on the basis of its
then-current contract with the Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the Hearing Officers'
rulings made at the hearing and finds no prejudicial
error. The rulings are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. Rockingham Poultry Marketing Cooperative,
Inc., a Virginia corporation with its principal office
in Broadway, Virginia, is engaged in the processing
and sale of chickens, turkeys, and certain
byproducts. Annually, the Employer ships for sale
outside the State of Virginia products valued in
excess of $50,000. The parties stipulated, and we
find, that the Employer is engaged in commerce
within the meaning of the Act, and that it will
effectuate the policies of the Act to assert
jurisdiction herein.
2. The Petitioner is a labor organization" that
claims to represent certain employees of the
Employer
'The Employer ' s name appears as amended at the hearing
'The Petitioner ' s name appears as amended at the hearing
'Hearing Officer Kluttz opened the hearing and presided the first day
Hearing Officer Salms presided over the second day of hearing, and closed
the hearing at that time Thereafter, the hearing was reopened by order of
the Regional Director for Region 5, and Hearing Officer Salins again
presided
'The record shows that the Petitioner was organized for the purpose of
3. No question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Sections
9(c)(1) and 2(6) and (7) of the Act for the following
reasons:
Petitioner seeks an elections in a unit of the
Employer's over-the-road drivers6 stationed at its
Broadway, Virginia, and Moorefield, West Virginia,
plants' contending that over-the-road drivers are
traditionally considered as a separate appropriate
unit of employees and therefore, as the drivers it
here seeks have never in fact been represented, they
constitute a unit appropriate for the purposes of
collective bargaining.
The Employer contends that the petition should
be dismissed as the drivers sought have been part of
a unit of "all employees", represented by the
Intervenor since its certification by the Board in
1945. The Intervenor appeared at the hearing and
stated that it is willing to disclaim interest in
representing the employees sought if the Petitioner
is seeking to represent them
The Employer employs several categories of truck
drivers Live drivers drive both tractor-trailers and
straight body trucks. It is their job to pick up live
poultry from farms and deliver the poultry to the
Employer's processing plants at Broadway,
Moorefield, and Stanley, Virginia. Local products
drivers drive refrigerated vans and/or refrigerated
tractor-trailers. It is their job to haul products
between plants, and occasionally to local customers.
Local drayage drivers drive any one of the
Employer's truck types except the tanker in the
transport of supplies and raw products from
warehouse to plants. Offal drivers drive dump
trailers, vans, and/or the I tanker owned by the
Employer. They haul fat products in the tanker, or
other byproducts in vans or dump trailers.
Over-the-road drivers drive dump trailers,
tractor-trailers, large vans, or, on occasion, the
tanker. Their job is to handle long-haul deliveries
Generally, except for over-the-road drivers, all
drivers are paid on an hourly basis, are paid for
overtime, and return to the plant at which they are
based each day. Over-the-road drivers are salaried,
are not paid for overtime, and are often on a long
haul that necessitates their sleeping in their cab.
When offal drivers are on long hauls,8 and when
dealing with employers concerning wages , hours, and working conditions
The Employer challenged only its status as a "traditional representative"
of truckdrivers, a point we need not deal with here
'The petition was timely , as it was filed in the period 90 to 60 days
immediately preceding expiration of the then -current Employer-Intervenor
contract
'Also referred to throughout the record as "refrigerated truck drivers "
Although , as will appear below, drivers other than over -the-road drivers
also drive refrigerated trucks , the parties agree that the term is reserved for
reference to over -the-road drivers
'The Petitioner is willing to represent all over-the-road drivers in the
States of Virginia and West Virginia The Employer 's drivers in that
category all work out of Broadway and Moorefield
'About once each week, one or another of the Employer's offal drivers
takes a long haul, i e , as far away as Battle Creek , Michigan
174 NLRB No. 194
ROCKINGHAM POULTRY MARKETING COOPERATIVE, INC.
other drivers take an unusual haul,' they often are
paid on the same basis as over-the-road drivers.
With the exception of overtime, benefits are the
same for all employees. When hourly-paid'
employees are given wage increases, corresponding
increases are given to over-the-road drivers.
Drivers in different categories are to some extent
commonly supervised. At each plant, ' all hiring is
done by the respective plant manager At the
Broadway plant, over-the-road drivers are supervised
by the dispatcher, who also supervises offal drivers
when they take over-the-road trips. At Moorefield,
the plant manager acts as dispatcher, and supervises
over-the-road drivers and local drayage drivers.
Over-the-road drivers enjoy plantwide seniority.
While interchange is not frequent, drivers have
transferred into production jobs, and have been
given temporary jobs during times of license
suspensions. All drivers, including over-the-road
drivers, do some loading of their own trucks."
In 1945, and again in 1954, the Board certified
the Intervenor as exclusive bargaining representative
in a unit of "all employees" at the Employer's
Virginia and West Virginia, plants excluding only
office clerical employees, guards, professional
employees and supervisors as defined in the Act.
The record shows clearly that over-the-road drivers
have always been included in that unit. The
stipulation for certification upon consent election,
signed by the parties, and by an agent of the Board,
prior to the 1945 election, describes the unit as "all
production and maintenance employees, including
truck drivers ..." The stipulation in 1954 describes
the unit simply as "all employees
Over-the-road drivers have never been specifically
excluded in any unit description The names of all
over-the-road drivers appeared on the eligibility list
for the 1954 election. The notice to employees
posted by the Broadway plant manager with
instructions as to the order of voting by department
listed "refrigerated truck drivers." In the
investigation by the Board of objections to the
conduct of the 1954 election, communications from
the parties show that the inclusion of over-the-road
drivers was agreed upon, and that the only drivers
who were excluded were live drivers, who, the
parties agreed, were at that time supervisors. The
Regional Director for Region 5 issued a report on
these objections on May 10, 1954, in which, inter
alia, he found that some drivers voted, and that no
one on the eligibility list was denied the right to
vote. No one excepted to his findings. In
preparation for new contract negotiations in 1961,
documented evidence shows that the Employer
discussed with its counsel a number of difficulties it
had been having generally with some truck-driver
'Local products drivers on occasion go as far as Richmond and
Roanoke, Virginia Live drivers with some frequency go as far north as
1279
classifications, and specifically asked his opinion as
to what consequences could follow if the parties
were to exclude over-the-road drivers from the unit.
In 1967, a new business agent, Joseph K. Weakley,
began to administer the contract between the
Employer and the Intervenor. He requested a
seniority list. The list supplied included
over-the-road drivers. Weakley testified that, with
the exception of some office clerical employees and
supervisory foremen, the list did not include anyone
that was not in the unit.
A composite evaluation of all evidence convinces
us that over-the-road drivers have been included in
the unit represented by the Intervenor or one of its
predecessor locals since 1945. The fact that some or
all of the over-the-road drivers may not be members
of the Intervenor is not significant, as they are not
required by the parties' contract to be members.
Nor do we find it significant that no grievances have
for some time been processed on behalf of any
over-the-road drivers. The uncontradicted testimony
of the Employer's counsel is that no grievances on
behalf of any unit employee have been processed in
the past 10 years.
It may well be that the Intervenor has not actively
represented over-the-road drivers, and that the
Employer may have desired to exclude them from
the overall unit However, we find, on all the facts
set forth above, and on the record as a whole, that
over-the-road drivers have historically been
bargained for as part of the overall unit Further,
particularly as the over-the-road drivers perform in
substantial respects duties similar to those of other
drivers whom the Petitioner does not seek, share in
all general wage increases, enjoy all major fringe
benefits enjoyed by the other unit employees (with
the exception of overtime pay), at times are
transferred to production jobs, and in some
instances are subject to common supervision and
share plantwide seniority with other unit employees,
we find that over-the-road drivers do not have a
community of interest apart from other unit
employees sufficient to justify their placement in a
separate unit. We therefore find that it is not
appropriate to sever them from the existing unit."
Accordingly, we shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
Pennsylvania , and as far south as North Carolina
..On occasion they help the loaders Local drivers, in fact , sometimes
load to fill out their time
"Member Fanning does not rely on the bargaining history as a ground
for dismissal Were he satisfied that these over-the-road drivers had a
community of interest separate from the other bargaining unit employees,
he would grant severance