Wilson Engraving Co.

National Labor Relations Board - Board Decisions

Sep 26, 1980

252 N.L.R.B. 333 (N.L.R.B. 1980)

WILSON ENGRAVING COMPANY, INC.
Wilson Engraving Company, Inc. and General Driv-
ers, Warehousemen and Helpers, Local Union
745, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Petitioner. Case 16-
RC-7898
September 26, 1980
DECISION ON REVIEW, ORDER, AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 13, 1979, the Regional Director for
Region 16 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding in which he
found a unit of city drivers comprising the six em-
ployees sought by the Petitioner to be appropriate.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
timely filed a request for review of the Regional
Director's Decision alleging that he erroneously
excluded eight dual-function employees from the
unit of city drivers.
By telegraphic order dated May 7, 1979, the re-
quest for review was granted. Pursuant to the
Board's procedures, the election was held on May
8, 1979, and the ballots were impounded pending
the Board's Decision on Review. The Petitioner
filed a brief on review in support of the Regional
Director's unit finding.
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, including the Petitioner's brief on review,
and makes the following findings:
The Employer is a Texas corporation engaged in
the manufacture and sale of photographic plates
and color separations for the printing industry at its
Dallas, Texas, facility involved herein. It has six
radio-equipped vehicles for deliveries and pickups
which are assigned to six individuals employed
principally as drivers.' These six employees are su-
pervised by Homer Green, a corporate official who
performs as dispatcher until 3 p.m. each day. The
record reveals that the aforementioned drivers are
also assigned to nondriving duties. 2
I Employees Daniels, Geaslin, Lyons, McClung, Pollard, and Thomas
were found by the Regional Director to comprise the drivers' unit, con-
trary to the Employer's contention that it regularly utilizes 14 employees
as drivers.
For example, Daniels regularly distributes incoming items to certain
employees who work in upstairs offices and on occasion he performs pro-
duction-type work such as removing tops from magnesium plates; Geaslin
wraps packages and he and McClung help out in the production shop;
252 NLRB No. 48
With respect to eight other employees whose
unit placement is in dispute, the record testimony
discloses that all but one3 punch the timeclock, are
hourly rated, and have the same fringe benefits as
the included drivers. Most were hired and princi-
pally employed as city drivers and subsequently as-
signed to their current nondriving duties.
The undisputed evidence pertaining to the al-
leged dual-function employees is as follows:
Dane Hatchett prepares and wraps out-of-town
orders close to the drivers' dispatch desk. He also
makes deliveries and pickups every day which
comprise 50 to 65 percent of his work.
Tenny Jones writes customer order production
tickets and follows the work through the shop in
addition to preparing and wrapping packages in the
shipping department like Hatchett. Jones also
spends between a quarter and a third of his time
making regular pickups and deliveries, and is given
preference over some regular drivers with respect
to assignments in southwest Dallas and Arlington
because of his familiarity with those areas.
Jay Bullard begins work at noon, and divides his
first 3 hours between preparing packages for ship-
ment and making regular driver deliveries, the
latter occupying approximately 25 percent of his
worktime. From 3 to 7 p.m., Bullard works in
relief of Homer Green, and in such capacity Bul-
lard exercises some discretion in making driver as-
signments and in directing drivers. However, con-
trary to the Petitioner, the record shows that Bul-
lard lacks hiring or firing authority, and is other-
wise silent as to whether Bullard possesses any
other indicia of supervisory authority.
Charles Evert reports to Homer Green, and pri-
marily performs general maintenance and cleanup
duties, including taking company vehicles to a
garage for repairs. He drives a company pickup
truck to make daily pickups from the post office,
bus station, and the Purolator Company. In addi-
tion, all heavy deliveries to customers are made by
Evertt in his truck, sometimes with the assistance
of a regular driver. These driving duties account
for about 35 percent of Evertt's worktime.
Connie Fagan performed regular delivery driver
duties until a few months before the instant hearing
when she was given a pay increase and reassigned
to clerical work in the Employer's upstairs office
under office supervision. She continues to be called
upon for pickup and delivery driving on an "as
Lyons occasionally relieves the dispatcher for brief intervals; and all of
the regular drivers except for Thomas, the most recent hire. may be as-
signed cleanup chores or other work whenever they are not driving.
s Scott Wilpitz, unlike the others, is salaried and was hired specifically
to work in sales on the account of one of the Employer's best customers.
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
needed" basis which averages out to two or three
times a day.
Allen Greer similarly was promoted and trained
to fill a vacant position involving handling custom-
er "U.P.C." (unit pricing code) orders in an office
and under separate supervision. Although he is no
longer dispatched every day, his driving assign-
ments occupy approximately 25 percent of his
hours.
Richard Pradarits was reassigned from regular
city driving to assist a salesman in an upstairs office
with one of the biggest customer accounts. His
new position requires Pradarits to make special de-
liveries to his customer. Apart from his sales-relat-
ed work, he is dispatched for regular pickups and
deliveries approximately 40 percent of the time.
Scott Wilpitz, as previously noted, was hired as a
salesman in charge of a large customer account,
and is salaried. Like Pradarits, he makes special de-
liveries to his own customer. He too is dispatched
to make regular deliveries, but only when no one
else is available and such driving assignments ac-
count for not over 15 or 20 percent of Wilpitz'
worktime.
The Regional Director excluded the aforesaid
employees from the unit based on his findings that
their driving function neither occupies a substantial
portion of their worktime nor shows any regular-
ity, pattern, or consistent schedule. We disagree.
For the reasons set forth below, we find that these
dual-function employees, except as noted herein-
after, have a sufficient community of interest with
unit employees to warrant their inclusion in the
unit.
It is well established that the Board4 may in-
clude a dual-function employee in a unit if he per-
forms duties similar to those of unit employees in
sufficient degree to demonstrate that he has a sub-
stantial interest in the unit's wages, hours, and
working conditions. Here, we find that employees
Hatchett, Evertt, and Pradarits perform similar de-
livery and pickups as included drivers during sub-
stantial portions of their working time, or approxi-
mately 50, 40, and 35 percent, respectively. Also,
like unit employees, they are hourly paid, share the
same fringe benefits, and are subject to the same
supervision and working conditions while driving.
We further note the record evidence showing that
they and the included drivers have substantial con-
tacts during their respective nondriving work as-
signments. Accordingly, we conclude that the
above-named employees share a community of in-
terest with the already included drivers, and we
shall therefore include them in the unit of city driv-
ers.
4 Berea Publishing Company, 140 NLRB 516 (1963).
On the other hand, the evidence reveals that em-
ployees Greer and Jones share a lesser community
of interest with the unit drivers insofar as their
driving duties occupy only approximately 25 per-
cent of their working time. Even more markedly
differing interests from those of the drivers are en-
joyed by Bullard, Wilpitz, and Fagan. Bullard, as
noted, acts as a substitute dispatcher during half or
more of his work hours, which are from noon to 7
p.m., and he drives no more than approximately 25
percent of his time. Wilpitz is the only salaried em-
ployee in issue, and his driving is limited to times
when no one else is available to drive, which
amounts to no more than 15 to 205 percent of his
time. Lastly, Fagan has been assigned to the Em-
ployer's office to perform office clerical duties
during most of her working day. She also drives
only approximately 20 percent of her time.
We find from the foregoing that Greer and Jones
lack a sufficient community of interest with the
city drivers to warrant their inclusion in the unit,
and further, that Bullard, Wilpitz, and Fagan have
markedly differing interests from the unit employ-
ees, and accordingly, we shall exclude the aforesaid
employees from the unit of city drivers.
Inasmuch as we have found that the unit must be
enlarged to include employees Hatchett, Evertt,
and Pradarits who we have found share a common
community of interest with the unit employees, we
shall order that the election conducted on May 8,
1979, be vacated and shall direct an election in the
unit found appropriate herein, as described below: 6
All city drivers, including the dual-function
employees who spend a third of their time
driving, employed at the Employer's place of
business located at 1702 South Central Ex-
pressway, Dallas, Texas, excluding all other
employees, office clerical employees, guards,
watchmen and supervisors as defined in the
Act.
ORDER
It is hereby ordered that the election conducted
on May 8, 1979, be, and it hereby is, vacated.
v Although it is not clear on the record, this figure may also include
Wilpitz' driving which is incidental to his predominant salesman's duties.
See W. C. Hargis & Sons Inc., 164 NLRB 1042, 1047-48 (1967).
^ The Petitioner shall be permitted to withdraw its petition without
prejudice upon written notice to the Regional Director for Region 16
within 10 days from the date of this Decision on Review, Order, and Di-
rection of Election. Independent Linen Service Company of Mississippi, 122
NLRB 1002 (1959). Further, inasmuch as the unit found appropriate
herein is larger than the unit sought by the Petitioner, the holding of an
election will be conditioned upon a demonstration by the Petitioner.
within 10 days from the date hereof, that it has an adequate showing of
interest in the broader unit found appropriate.
334
WILSON ENGRAVING COMPANY, INC.
[Direction of Election 7 omitted from publica-
tion.]
MEMBER JENKINS, dissenting:
I would affirm the Regional Director's Direction
of Election in the requested unit of six city drivers
which constitute an appropriate unit," and find that
the Employer has failed to supply any evidentiary
foundation for its contention that the Regional Di-
rector erroneously declined to expand the unit by
including eight production and clerical employees
who also drive on an "as needed" basis.9 Nor can I
subscribe to my colleagues' patchwork modifica-
tion of the unit composition, in these circum-
stances, by including three (Hatchett, Evertt, and
Pradarits) of the eight employees meeting the dual-
function criteria of Berea Publishing Company.
The facts show that the six city drivers regularly
make deliveries in the Employer's six radio-
equipped delivery vehicles under the supervision of
dispatcher Homer Green. They also assist in var-
ious nondriving chores to fill in their time between
deliveries. On the other hand, the eight employees
whose inclusion is sought by the Employer are en-
gaged principally in sales, production, or office or
plant clerical functions, except for one substitute
dispatcher and another who is in charge of mainte-
nance and janitorial work. These alleged dual-func-
tion employees are separately supervised during
their nondriving work" and are, for the most part,
employed in separate areas of the Employer's
premises-half of them, including Pradarits, are as-
signed to offices on the second floor.
I [Excelsior footnote omitted from publication.]
* See The Salvation Army. Inc., 225 NLRB 406 (1976).
9 The Employer's bare asertion that the eight disputed employees'
duties are too fragmented to permit their representation otherwise has no
evidentiary support in this record. In fact, the record is devoid of any
evidence regarding the numbers and types of any other of the Employ-
er's employees, or of such other employees' shared or separate communi-
ty of interests vsF-a-vis the eight employees in issue herein.
'o 140 NLRB 516.
l" Testimonial evidence referred to specific, separate supervision of
some of the disputed employees, was silent as to others, and, at most, in-
dicated that all are under common supervision while driving.
My colleagues point out that all 14 employees,
except for Wilpitz, are hourly paid and were for-
merly, if not presently, classified as drivers; share
the same general benefits and working conditions;
and are under common supervision while driving.
However, their inclusion of employees Hatchett,
Evertt, and Pradarits only is apparently predicated
on the said employees' higher percentages of driv-
ing time, which approximate 50, 35, and 40, respec-
tively, as manifesting their "sufficient interest in the
unit's conditions of employment." Such undue em-
phasis on mere percentages for purposes of unit
placement appears to have produced some bizarre
results.' 2 Thus, the majority decision includes Hat-
chett but excludes Greer although the 25-percent
driving time by full-timer Greer is comparable to
the 50-percent driving time of part-timer Hatchett.
Likewise, although salesmen Pradarits and Wilpitz
are both separately supervised and situated in up-
stairs offices, Pradarits has been included while
Wilpitz, who is salaried, has been excluded. Simi-
larly, included employee Event divides his ap-
proximately 35-percent driving chores between city
deliveries and his own routine mail and package
pickup whereas part-timer Jones has been excluded
despite the fact that he spends a third to a quarter
of his hours engaged in priority city driving assign-
ments to southwest Dallas because of his great fa-
miliarity with that area.
The foregoing inconsistent unit placements by
my colleagues serve merely to underscore on my
own view of the correctness of the Regional Direc-
tor's Direction of Election in the petitioned- for
drivers' unit herein, particularly inasmuch as the
Employer has failed to produce any evidence war-
ranting expansion of the said unit.
I Although the Employer's dispatch sheets could presumably have es-
tablished with some precision the extent to which disputed employees
engage in unit work, the only evidence adduced with respect thereto was
general testimony regarding estimated percentages of time spent in driv-
ing, and a copy of a letter from the Employer to a customer listing the
names of 10 drivers (including Bullard, Jones, and Hatchett) who would
be making deliveries to that customer's premises.
335