Southern Bakeries Co.

National Labor Relations Board - Board Decisions

Oct 2, 1957

118 N.L.R.B. 1508 (N.L.R.B. 1957)

1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern Bakeries Company and Local Union #204, Interna-
tional Union , United Brewery, Flour, Cereal , Soft Drink and
Distillery Workers of America , AFL-CIO, Petitioner . Case No.
12-RC-101. October 0, 1957
SUPPLEMENTAL DECISION, CERTIFICATION OF RE-
SULTS OF ELECTION, AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election of the Board
dated June 28, 1957, separate elections by secret ballot were held in
this proceeding on July 24, 1957, under the direction and supervision
of the Regional Director for the Twelfth Region in unit A and unit
B found appropriate by the Board.' At the conclusion of the elections,
the parties were furnished a tally of ballots which showed that of
approximately 49 eligible voters in unit A, 17 votes were cast for the
Petitioner; 25 votes were cast against the Petitioner; and 1 ballot was
challenged. Of the approximately 4 eligible voters in unit B, 2 votes
were cast for and 1 vote against the Petitioner. One ballot was chal-
lenged. Thus, with respect to unit B, the challenged ballot was suffi-
cient to affect the results of the election. No objections to the election
or conduct thereof have been filed.
With respect to unit A the Regional Director recommended that
since the challenged ballot was not sufficient to affect the results, a
proper certification of results of election issue.
With respect to unit B the Regional Director, in accordance with
Section 102.61 of the Board's Rules and Regulations conducted an
investigation of the challenged ballot and on August 13, 1957, issued
and served upon the parties his report on challenged ballot in which
he recommended that the challenge be sustained and the Petitioner
certified. The Employer thereafter filed timely Exceptions to the
Regional Director's report.
The Regional Director's investigation disclosed that the ballot in
question was cast by employee King Mercer and was challenged by
the Petitioner on the ground that Mercer was not in unit B since he
was neither an over-the-road driver nor a relief or part-time over-the-
road driver. Mercer has been employed by the Company in excess
of 30 years. His principal work is that of a maintenance man in the
'The unit descriptions are as follows :
Unit A : All truckdriver-salesmen of the Employer working out of the Tampa, Florida,
office and all truckdriver- salesmen working out of the offices of the agencies under the
jurisdiction of the Southern Bakeries Company, Horatio and South Dakota Avenues,
Tampa, Florida ; excluding all other employees , guards, and supervisors as defined in
the Act. -
Unit B : All over-the-road drivers of the Employer, and relief or part-time driver
working out of the Tampa, Florida, office , excluding all other employees, guards, and su-
pervisors as defined in the Act.
118 NLRB No. 205.
SOUTHERN BAKERIES COMPANY 1509
Company's garage at Tampa, Florida, where he washes and greases
trucks, changes tires, and picks up trucks on the road that are broken
down. He works under the supervision of the shop superintendent,
who also supervises the over-the-road drivers and approximately four
truck maintenance men and mechanics. In addition to the foregoing
duties, Mercer occasionally drives a truck on over-the-road trips. To
the date of the investigation he had made five such trips during 1957.
The Regional Director rejected the Employer's contention that
Mercer falls within the definition of unit B in the Board's Decision
and Direction of Election. He notes that the Decision and Direction
of Election specifically included in the unit "relief or part-time over-
the-road driver" (singular), and that this inclusion was based upon
the testimony that an employee (Martin) filled in regularly for the
over-the-road drivers when either was absent and made an extra run
during the peak of the season, and that when not driving, Martin was
used as a utility man in the plant. The Regional Director then found
that as Mercer does not regularly fill in for either of the over-the-road
drivers and spends only a very small portion of his time performing
work in the unit and as the Employer has a regular relief driver,
Mercer's duties and interests are more closely related to those of the
other garage employees who are not in the unit. Accordingly, he
recommended that the challenge to the ballot of King Mercer be sus-
tained and that with respect to unit B a proper certification of repre-
sentatives issue on the basis of the valid votes contained in the tally
of ballots of July 24,1957.
The Employer excepted to the Regional Director's conclusions that
(a) it does not appear that Mercer is regularly employed in the unit
for sufficient periods and (b) to that portion of the same paragraph
which states that Mercer's duties and interests are more closely related
to those of the other garage employees who are not in the unit. It
also excepts to the Regional Director's recommendation that the chal-
lenge to the ballot of Mercer be sustained. In the alternative, the
Employer moves for an order directing a hearing on the Employer's
exceptions. In support of the exceptions the Employer, while not
disputing the factual findings of the Regional Director, alleges in
addition that Mercer is paid at a lower rate and works a shorter week
than Martin, a relief driver; that he is supervised by the shop superin-
tendent; and that the peak season in the Employer's business is from
April to November.
Assuming that this additional information is correct, we neverthe-
less find no merit in the Employer's exceptions. Whether or not a
part-time employee or an employee employed in dual functions for the
same employer is entitled to be included in a particular unit depends
on whether such employee is regularly employed in the unit for a
sufficient period of time to demonstrate that he has a substantial in-
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terest in the wages, hours, and working conditions of employees in
the unit.2 Here, the record, including the information set forth in
the exceptions, discloses that Mercer is neither regularly employed
in the unit as a part-time or relief over-the-road driver, nor that he
drives a truck on over-the-road trips for a sufficient period of time to
show that he has the same interests as the over-the-road drivers.
Mercer's primary and most important function is that of a mainte-
nance man. He drives trucks on over-the-road trips only occasionally.
Up to the time of the investigation he had made only five such trips
during 1957, unlike the relief or part-time driver Martin, who filled
in regularly for over-the-road drivers when either was absent and
regularly made an extra run during the peak season. The record also
discloses that Mercer did not spend a sufficient period of time on over-
the-road trips to acquire a substantial interest in the working condi-
tions of over-the-road drivers. His interests, rather, are in common
with those of the other four maintenance men working under the
supervision of the shop superintendent.
Accordingly, as the Employer has neither disputed the Regional
Director's factual findings with respect to the employment and duties
of Mercer, nor alleged any other additional information with respect
to Mercer, which if admitted would change our conclusions as to the
unit placement of Mercer, we hereby deny the Employer's motion for
an order remanding the matter to the Regional Director for a hearing
and sustain the Petitioner's challenge to the ballot of Mercer. As
the tally of ballots shows that the Petitioner received a majority of
the valid votes cast in unit B, we shall certify the Petitioner as the
exclusive bargaining representative for that unit.
[The Board certified that a majority of the valid votes cast in unit A,
heretofore found appropriate, was not cast for Local Union #204,
International Union, United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, AFL-CIO, and that this Union is
not the exclusive bargaining representative of the employees of
Southern Bakeries Company in unit A.]
[The Board further certified Local Union #204, International
Union, United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, as the designated collective-bargain-
ing representative of the Southern Bakeries Company in unit B
heretofore found appropriate.]
CHAIRMAN LEEDOM and MEMBER JENKINS took no part in the con-
sideration of the above Supplemental Decision, Certification of Re-
sults of Election, and Certification of Representatives.
2 Ocala Star Banner, 97 NLRB 384; Maule Industries, Inc., 117 NLRB 1710; Chemical
Express, 117 NLRB 29; Beechnut Foods Division of The Beechnut Life Savers Co., Inc.,
118 NLRB 123.