206 N.L.R.B. 493 (N.L.R.B. 1973)

Wayland Distributing Co., Inc.

National Labor Relations Board - Board DecisionsOct 19, 1973

206 N.L.R.B. 493 (N.L.R.B. 1973)

WAYLAND DISTRIBUTING COMPANY Wayland Distributing Company , Inc., and C. G. Way- land & Son, Inc. and Teamsters Freight Employees Local Union No. 480 , affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Petitioner. Case 26- RC-4394 October 19, 1973 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended , a hearing was held before Hearing Officer William K. Harvey. Following the close of the hearing , the Regional Di- rector for Region 26 transferred the case to the Board for decision . Subsequently , the Employers filed a brief with the Board . By order of the Board dated March 21, 1973, the record was reopened for further hearing. A further hearing was held on April 13, 1973. Thereaf- ter, the Employers filed a brief. 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 reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error . They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees ' of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated that Wayland Distribut- ing Company, Inc., is an Alabama corporation en- gaged in interstate transportation of mail and derives in excess of $50,000 gross annual revenue from such interstate shipments pursuant to contracts with the United States Postal Service . The parties further stip- ulated that C. G. Wayland & Son, Inc ., is an Alabama corporation with employees located in Nashville, Tennessee , and other States and is engaged in the business of processing empty mail equipment pur- suant to contracts with the U. S. Postal Service and that it derives in excess of $50,000 gross annual reve- nue from such contracts. 493 The Petitioner requests a unit consisting of all driv- ers employed by Wayland Distributing Company, Inc., who reside in the Nashville, Tennessee, area and all drivers and mailbag handlers employed by C. G. Wayland & Son at its Nashville, Tennessee, location, excluding all office clerical employees, salesmen, guards, and supervisors as defined in the Act. Alter- natively, the Petitioner seeks separate units, one con- sisting of all drivers of Wayland Distributing Company, Inc., in the Nashville area, and the other consisting of drivers and mailbag handlers employed at the Nashville location of C. G. Wayland & Son, Inc. The Employer's position is that the overall unit requested by the Petitioner is inappropriate as the Nashville facilities of the two Companies are not op- erated as a single integrated enterprise. The Employer also contends that the alternate units requested by the Petitioner are inappropriate as there is integrated con- trol and supervision of all employees of each Employ- er in Nashville and other cities by that Employer's central office located in Birmingham, Alabama. Wayland Distributing Company, Inc., has its prin- cipal office and repair shop in Birmingham, Alabama. It employs approximately 74 full-time and 18 part- time drivers domiciled in Birmingham, Montgomery, and Mobile, Alabama; Chattanooga, Knoxville, Memphis, and Nashville, Tennessee; Jackson, Missis- sippi; New Orleans, Louisiana; Rome, Georgia; St. Louis, Missouri; Washington, D.C.; Columbia, South Carolina; and Jacksonville, Florida. With the excep- tion of the terminals located in Jacksonville, Jackson, and Mobile, the drivers receive their dispatch orders directly from the Employer's Birmingham office. There are three drivers stationed in Nashville, who drive from Nashville to St. Louis and return to Nash- ville. There is no terminal manager in Nashville, and the day-to-day direction of the Nashville operation is done through the Birmingham office, which also is responsible for hiring, firing, and disciplining the driv- ers. There is some temporary interchange among the various terminals of Wayland Distributing Company, Inc., although C. G. Wayland, the Employer's presi- dent, could not recall any time when a Nashville driv- er was transferred to another city to make a run. The wages are determined in the contracts with the Postal Service. C. G. Wayland & Son, Inc., maintains an office and warehouse in Nashville, where approximately one driver, three warehouse employees, and a warehouse manager are employed. The warehouse manager has the authority to hire temporary help and may dis- charge employees. Mrs. Wayland is responsible for the hiring of permanent employees. The driver for C. G. Wayland & Son, Inc., picks up empty mailbags at the post office terminal and takes them to the ware- 206 NLRB No. 57 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD house, where they are sorted and repacked. Thereaf- ter, either a direct mailbag service will pick them up or the mailbags are shipped back to the post office terminal by a C. G. Wayland & Son, Inc., driver. In addition to the Nashville location, C. G. Wayland & Son, Inc., maintains warehouses in Birmingham, Ala- bama; Memphis, Tennessee; Omaha, Nebraska; and Houson, Texas, with each warehouse performing sim- ilar functions under the direction of its own manager. Both companies are owned by the same family. C. G. Wayland is the majority stockholder and president of Wayland Distributing Company, Inc., and serves as vice president of C. G. Wayland & Son, Inc. Mrs. Wayland is president of C. G. Wayland & Son, Inc. The companies are both headquartered in Birming- ham, Alabama, but maintain separate offices, with the offices of C. G. Wayland & Son, Inc., maintained at the Wayland home. The warehouse location in Nashville, which con- sists of a 10,000-square-foot building and approxi- mately 1 acre of surrounding parking space, is owned by C: G. Wayland, who leases the property to C. G. Wayland & Son, Inc. The Wayland Distributing Company, Inc., drivers park the tractors on the lot behind the warehouse, and occasionally tractors, are interchanged between the two companies. When the warehouse is open, the Wayland Distributing Compa- ny, Inc., drivers are required to punch the same time- clock used by the C. G. Wayland & Son, Inc., employees. One driver of Wayland Distributing Com- pany, Inc., has access to the warehouse after hours, and Wayland Distributing Company, Inc., stores tires in the warehouse. Wayland Distributing Company, Inc., pays no rental fee to C. G. Wayland & Son for storage privileges or parking its vehicles. Although the Employer contends that Mrs. Way- land has no active part in the management of Way- land Distributing Company, Inc., the record reveals that Mrs. Wayland instructed a driver of Wayland Distributing Company, Inc., to use the timeclock in the warehouse, and hired another employee for Way- land Distributing Company, Inc. In addition, a driver testified that the Wayland Distributing Company, Inc., drivers receive most of their instructions from Mrs. Wayland. Wayland testified that there were no transfers be- tween the two companies, although he stated that in an emergency situation it would be possible for a Wayland Distributing driver to work for C. G. Way- land & Son. In view of the common ownerships of the two com- panies, the common use of the Nashville facility, the control exercised by Mrs. Wayland over both compa- nies, the interchange of tractors, and the occasional temporary transfer of Wayland Distributing drivers to C. G. Wayland & Son, we find that the two compa- nies are operated as a single employer.' We further find that a unit limited to the Employer's Nashville operations is appropriate: Al- though Mrs. Wayland regularly visits the Nashville warehouse, it is clear that the day-to-day operations of the warehouse are the responsibility of the ware- house manager, who has the authority to hire tempo- rary employees, as well as the authority to discipline and discharge. Finally, we shall include the Wayland Distributing truckdrivers in the unit along with the drivers and mailbag handlers of C. G. Wayland & Son. We note that the Wayland Distributing truckdrivers are under separate immediate supervision from the C. G. Way- land & Son employees, and there is no interchange between the two groups except as heretofore stated. Nevertheless, it is well established that where , as here, a labor organization is willing, and seeks, to represent the truckdrivers in a plantwide unit, even though they may be away from the warehouse most or all of the time and do little or no work in the warehouse, we find that truckdrivers have a sufficient community of in- terest with the warehouse employees to warrant in- cluding them in such a unit .2 Accordingly, we find that the following unit is ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All drivers employed by Employer Wayland Distri- buting Co., Inc., who reside in the Nashville, Tennes- see, area and all drivers and mailbag handlers employed by Employer C. G. Wayland & Son, Inc., at its Nashville, Tennessee, location, excluding all of- fice clerical employees, salesmen , guards, and super- visors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.] CHAIRMAN MILLER , dissenting, Upon finding that C. G. Wayland & Son, Inc., and Wayland Distributing Company, Inc., are commonly owned, commonly managed, exchange employees and equipment, and share a facility in Nashville, my u See N.L.R B v. Elias Bros Big Boy, Inc, 325 F.2d 360 (C A. 6, 1963). Sec also Dohrmann Commercial Company and Dohrmann Hotel Supply Co, 127 NLRB 205. Our conclusion is based on specific unrebutted evidence . Unlike our dissenting colleague , we can perceive no basis for either ignoring or placing little confidence in such uncontradicted testimony. Indeed, Mr. Way- land was the only witness who testified for the Employer , and he did not deny that there was interchange of employees between the two companies . In fact, as noted above , he testified that it would be possible in an emergency for a Wayland Distributing driver to work for C G. Wayland and Son, but the converse would not be true. In addition , Wayland further stated that this would not be done in a normal situation, other than an emergency. In our opinion, the implication is clear that such interchange has occurred in the past . This interchange should not be confused with the lack of permanent transfers, as was apparently done by our dissenting colleague. 2 Mark Oxygen Company of Alabama, 147 NLRB 228 WAYLAND DISTRIBUTING COMPANY 495 colleagues conclude that the two companies are oper- ated as a single employer. In my view, the record reflects no more than common ownership of two inde- pendently operated and functionally unrelated com- panies. There is no dispute that the two companies are functionally separate. One (C. G. Wayland) sorts and packages empty mailbags: The second (Wayland Dis- tributing) hauls mail and performs no hauling func- tion for the mailbag service rendered by the first. My colleagues find, however, that the two compa- nies are commonly managed. This finding is based upon what my colleagues consider to be persuasive testimony relating to Mrs. Wayland's participation in the operation of Wayland Distributing. But examined more closely, this testimony indicates only that Mrs. Wayland hired one employee, relayed dispatch in- structions, and told one employee to use the timeclock at the C. G. Wayland & Son warehouse. The isolated instance of the one hire would hardly suffice, in my opinion, to establish that Mrs. Wayland regularly par- ticipated in the management of Wayland Distributing Company. Nor am I inclined to place much confi- dence in the testimony of one employee that he had received dispatch instructions from Mrs. Wayland. The Wayland Distributing Company employs three full-time dispatchers, and in view of the testimony that Mrs. Wayland is rarely in Wayland Distributing's offices, it is difficult to believe that she performs dis- patching services for that company. In any event, this testimony conflicts with other record testimony that Mrs. Wayland exerts no control over the affairs of Wayland Distributing, which latter testimony I find to be more consistent with other evidence recited be- low and the reasonable inferences flowing therefrom. I note that Mrs. Wayland owns no stock in Way- land Distributing, has rarely visited the offices of that company (and only socially on those infrequent occa- sions), and clearly devotes her energies to the success- ful operation of C. G. Wayland & Son (a task which obviously occupies a substantial portion of her time).' Although my colleagues conclude that there is oc- casional temporary, transfer of Wayland Distributing drivers to C. G. Wayland & Son, I can find no evi- dence in the record to establish that such transfers have ever taken place. The most that can be found in the record is testimony that in an emergency such a transfer may occur, although no such emergency has yet arisen. I am unwilling to presume that such specu- lation will ever become an accurate prediction. Rath- er, I must conclude that since no transfers have occurred in the last 6 years, none are likely to occur in the foreseeable future. As to interchange of equipment, the record indi- cates that an employee of C. G. Wayland & Son testi- fied that he occasionally used a tractor of Wayland Distributing. He was unable to explain how he knew the tractor belonged to Wayland Distributing. This testimony was contradicted by the testimony of C. G. Wayland. In addition, Wayland testified that no extra tractors of Wayland Distributing were stationed in Nashville except during the Christmas rush. The trac- tors used by the drivers in Nashville came in from other runs, so that the tractors were in continuous operation. This testimony was corroborated to some extent by a Wayland Distributing driver who testified that he usually picked up a tractor brought in by a Birmingham driver. In light of the record as a whole, I am convinced that there is no significant inter- change of equipment. What my colleagues refer to as common use of the Nashville facility amounts to little more than evidence that a few courtesies have, as a matter of convenience, been extended by C. G. Wayland & Son to Wayland Distributing Company. For example, Wayland Distri- buting drivers may, on occasion, record their time by use of the C. G. Wayland & Son timeclock during the hours the warehouse is open. Since the warehouse hours have little correspondence to the drivers' sched- uled runs, it appears that the drivers would use the timeclock only 25 percent of the time. It is also a fact that these drivers regularly have their times marked, by timeclock or otherwise, at the post office, thus clearly indicating that usage of the timeclock is a mat- ter of convenience rather than a factor to be given serious weight in determining control. C. G. Wayland & Son also allows Wayland Distributing to store tires in the warehouse and park tractors in the lot .4 As noted above, one tractor may be parked at the lot during the Christmas rush but normally no tractors are parked there. It is also significant that Wayland Distributing regularly parks several trailers at the post office in Nashville. And Wayland Distributing has similar arrangements with other unrelated companies for parking, use of timeclocks, etc. I cannot agree with my colleagues that Wayland Distributing's limited use of the C. G. Wayland & Son warehouse is substan- tial enough to be deemed a persuasive indication that the two companies are operated as one. Not only do I disagree with my colleagues' findings that there is sufficient evidence that the two compa- nies are operated as a single employer, I also find ample evidence that the two companies are operated independently. Each company has separate board of 4It is not clear that C G Wayland & Son has any exclusive property interest in the lot surrounding the warehouse . C. G Wayland owns the land 3 There is no contention that her husband, Mr. Wayland, plays any active individually and testified that he leased only the warehouse and not the role whatever in the management or operations of that company. surrounding land to C G. Wayland & Son, Inc. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directors meetings, separate offices, separate payrolls and employee benefit programs, separate personnel policies, and separate management. The two compa- nies are functionally unrelated. And there is no ex- change of assets or employees between the corporations. I therefore find the evidence insufficient to establish, under existing precedent, that these two companies are operated as a single employer.' That being the case, I find no basis for the majority's find- ing that a combined unit of the employees of C. G. Wayland & Son and the drivers of Wayland Distri- buting Company stationed in Nashville is appropri- ate. But even if I were to accept the premise that these two companies operate as a single employer, I could not agree that the Wayland Distributing drivers have any community of interest with the employees of C. G. Wayland & Son. The Wayland Distributing drivers have no supervi- sor in Nashville. All instructions and supervision come from Birmingham. They drive 10-hour runs be- tween Nashville and St. Louis, and other runs be- tween Nashville and Birmingham. According to Federal regulation, these drivers cannot drive more than 70 hours inan 8-day period. Drivers stationed in St. Louis share the St. Louis-Nashville run, and driv- ers in Birmingham share the Birmingham-Nashville run. C. G. Wayland employees work exclusively in the Nashville warehouse between the hours of 7:30 a.m. and 3:30 p.m. One employee also drives a truck be- tween the warehouse and the Nashville post office. These employees are under the immediate supervision 5 See Gerace Construction, Inc., 193 NLRB 645, and the cases cited therein of the warehouse manager located in Nashville. It is apparent that C. G. Wayland employees and Wayland Distributing employees have minimal con- tact with each other as they work separate hours un- der different conditions and supervision in different locations. This case is completely distinguishable from Marks Oxygen Company of Alabama, 147 NLRB 228, on which my colleagues rely. In that case truckdrivers delivered products manufactured by plant employees in trucks loaded by plant employees. All the plant employees participated in the same commercial ven- ture whose success or failure depended to some extent upon their combined efforts and had a direct effect on their employment. The inclusion of the truckdrivers there in a plantwide unit was related to the general employee community of interest. The same cannot be said here. The employment of Wayland Distributing Company drivers in Nashville is completely unrelated to the existence of C. G. Wayland & Son. Nor is the success or failure of C. G. Wayland & Son, Inc., at all dependent upon the efforts of the employees of Way- land Distributing Company. Since the truckdrivers of Wayland Distributing do not possess even this mini- mal degree of community of interest with the employ- ees of C. G. Wayland & Son, the only appropriate unit petitioned for consists, as I see it, of the C. G. Way- land & Son employees located in Nashville. I would so find .6 6 I do not believe that the record testimony is sufficient to find that a unit of drivers employed by Wayland Distributing Company in Nashville consti- tutes a separate appropriate unit It appears that the Nashville drivers are centrally dispatched from Birmingham , along with other drivers of Wayland Distributing's overall mail hauling system who do not operate out of separate terminals Thus there is little record evidence to demonstrate why the Nash- ville group has any real separate community of interest justifying a separate unit. I would therefore dismiss the petition as it applies to the Wayland Distributing Company's Nashville employees.