Airco, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 348 (N.L.R.B. 1984)

348 DECISIONS OF NATIONAL LABOR .RELATIONS BOARD
Airco, Inc. and Chauffeurs & Sales Drivers, Local
Union No. 402, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Petitioner.
Case 10-RC-12839
14 December 1984
DECISION ON REVIEW AND
DIRECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 28 September 1983 the Regional Director for
Region 10 issued a Decision and Direction of Elec-
tion in the Petitioner's requested unit of production
and maintenance employees at the Employer's
Cherokee, Alabama facility, including plant opera-
tors, truckdrivers, and mechanics. The Employer
had contended that the operators were not proper-
ly included in the unit because they did not share a
community of interest with the other requested em-
ployees. The Employer filed a timely request for
review and the Board granted it by telegraphic
order of 28 October 1983. No briefs were filed on
review.
The National Labor Relations Board has delegat-
ed its authority 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 reaches the following conclusions:
The Employer manufactures industrial gases by a
largely automated process; the operators' duties
consist principally of monitoring the equipment.
The operators also fill trucks belonging to other
employers, and complete various paperwork associ-
ated with those pickups. The Employer's drivers
fill their own trucks and deliver the gas to the Em-
ployer's customers, spending most of their working
time on the road. The mechanics work at the Cher-
okee facility, maintaining and repairing the trucks.
There are approximately 26 drivers, 2 mechanics,
and 4 operators.
The Regional Director found that the Employ-
er's production department, employing the opera-
tors, and the distribution department, including the
drivers and mechanics, were largely separate. The
departments are separately housed and the employ-
ees have little contact across departmental lines, al-
though drivers enter the production department
briefly in connection with filling their trucks. The
departments are separately supervised at both the
immediate and facility levels. There has been no
interchange, and seniority is separate. Pay is deter-
mined independently by department and paychecks
are distributed separately. Each department buys
uniforms on its own and furnishes them to its em-
ployees.
Drivers • and operators receive the same training
in operation of the filling equipment, but otherwise
the skills and training of the three groups of em-
ployees are different. Operators must have experi-
ence with production equipment like the Employ-
er's, drivers must have a class A chauffeur's -license
and meet Transportation Department requirements,
and mechanics must have class A diesel mechanic
certification. The three groups of employees also
work different schedules and are paid by different
methods. The drivers are paid by mileage and
hourly but receive no overtime. The mechanics
and operators are paid hourly with overtime; they
work a 40-hour week except that 1 week a month
operators work 48 hours. The two mechanics work
different shifts and different days of the week: The
operators work rotating shifts around the clock,
and record their own time whereas the other em-
ployees use a timeclock.
The Regional Director concluded that "while
. : . a separate unit of truckdrivers and mechanics
may be appropriate, where, as here, no other union
is claiming to represent the truckdriyers . . . they
may be included in a production unit where the pe-
titioning union so desires . . . . Further, in view of
the close relationship between the truckdrivers and
the mechanics and the fact that to exclude the me-
chanics would result in a residual unit of two un-
represented employees, I find that the mechanics
should be included in the overall unit."
We agree with the Regional Director that the
Petitioner's requested unit is an appropriate one,
but not for the reasons he stated. His decision im-
plies that a petitioner's desires alone will determine
the placement of truckdrivers in or separate from a
production and maintenance unit. We agree with
the Employer that that is not the correct standard;
there are no per se rules to include or exclude any
classification of employees in any unit. Rather, we
examine the community of interest of the particular
employees involved, considering their skills, duties,
and working conditions, the Employer's organiza-
tion and supervision, and bargaining history, if any,
but no one factor has controlling weight. See E. H.
Koester Bakery Co., 136 NLRB 1006, 1009-11
(1962); Kalamazoo Paper Box Corp., 136 NLRB 134,
136-138 (1962) (severance petition). 1
We disavow the statement in Keystone Pretzel Bakery, 242 NLRB 492,
505-506 (1979), enfd 696 F 2d 257 (3d Or 1982), that the placement of
truckdrivers in a production and maintenance unit "depend[s] largely
upon the wishes of the petitioning union" We find that the correct stand-
ard was applied in Marks Oxygen Co, 147 NLRB 228 (1964)
We will continue to consider a petitioner's desires relevant, for the rea-
sons we stated in Marks Oxygen and elsewhere Mc-Mor-Han Trucking,
Continued
273 NLRB No. 53
AIRCO, INC , 349
Nonetheless, •Congress expressly contemplated
the plantwide unit in Section 9(b), and we have
held that "[a]. plant-wide unit is presumptively ap-
propriate under the Act, and a community of inter-
est inherently exists among such employees." Kala-
mazoo Paper Box Corp., 136 NLRB at 136. The
standard is the same but the burden is on the Em-
ployer to demonstrate that the interests of a given
classification are so disparate from those of other
employees that they cannot be represented in the
same unit. E. H. Koester Bakery, 136 NLRB at
1011. Here the Petitioner's request includes all the
Employer's employees whom Board policy allows
to be included in a production and maintenance
unit.
The presumption that this unit is appropriate has
not been rebutted. We recognize that there are
three separate groups of employees—drivers, me-
chanics, and operators—each of which has very
little in common with, either of the other two.
While the drivers and mechanics are included in
the same department by the Employer, they have
little contact, and their skills, training, and working
conditions are different. Similarly, both drivers and
operators fill trucks and are trained by the Em-
ployer to do that, and the two groups have occa-
sional brief contact in the process. While the em-
ployees in different classifications thus have little
contact, it is just as true that no two employees in
the same classification have much contact. That
factor therefore cannot negate a community of in-
terest sufficient to allow collective representation.
We also note that the employee complement of
32 is small, and that the three classifications are
166 NLRB 700, 701 (1967), Metropolitan Life Insurance Co, 156 NLRB
1408, 1411-1413 (1966), on remand from court of appeals in light of
NLRB v Metropolitan Life Insurance Co . 380 U S 438, 441-442 (1965)
That does not, however, obviate the need to show some community of
interest on the facts of the specific case
Chairman Dotson notes that where competing petitioners request dif-
ferent units, the relevancy of their desires will require a different analysis
Otherwise the Chairman finds it adds nothing to the analysts to say that
no petitioner desires a different unit, as the Regional Director noted here
functionally integrated. The • related functions of
drivers and mechanics are one basis for their fre-
quent inclusion in the same unit, and the Employer
does not contest that inclusion. 2 As noted, though,
the drivers here have as much in common with the
operators as they d6 with the mechanics.
Indeed, the alternatives to a plantwide unit here
are not favorable. The Board does not favor orga-
nization by department or classification, and it is
doubtful that either the mechanics or operators are
a craft. A combined unit of thetwo would be even
less appropriate on community-of-interest grounds
than either alone. Any of these units could thus be
called residual, as the Regional Director noted, and
the Board has normally preferred to avoid creating
such units where possible.
For all these reasons we find the plantwide unit
of drivers, mechanics, and operators appropriate.
Because the Regional Director directed an election
in this unit we will remand this proceeding to him
with directions to open and count the ballots and
to issue a certification.
DIRECTION
It is directed that the Regional Director for
Region 10 shall, within 10 days from the date of
this Decision on _Review and Direction, open and
count the ballots of the employees who voted in
the election conducted 28 October 1983. The Re-
gional Director shall prepare and serve on the par-
ties a tally of ballots and, unless there are determi-
native challenges or timely objections filed, he shall
issue the appropriate certification.
IT IS FURTHER DIRECTED that this proceeding is
remanded to the Regional Director for further
action pursuant to this Decision on Review and Di-
rection.
2 See, e g, Carpenter Trucking, 266 NLRB 907 (1983), Transportation
Enterprises, 229 NLRB 1248, 1249 (1977), Brunswick Meat Packers, 164
NLRB 887, 899 (1967)