E.H. Koester Bakery Co., Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1962

136 N.L.R.B. 1006 (N.L.R.B. 1962)

1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elsewhere in a week or so and to hire local craftsmen as requested. He
also proposed, in an effort to adjust the dispute, to divide the work
between the two groups. But all this is further indication that even
if a further hearing were directed now in this particular proceeding,
the very parties involved would not litigate it fully, as the case
requires.
Given the long period of time that has elapsed since the events, now
almost 2 years, the fact that the project itself has long been completed,
the absence from Florida now of the Charging Employer itself, and
the serious important impact upon employer-employees relations in
the construction industry generally which a determination of the
merits of the dispute in this case would be considered as having, we do
not believe the true underlying objectives of Section 10(k) of this
statute would be furthered by attempting now to hear and determine
adequately the dispute which long ago gave rise to this proceeding.
Accordingly, we shall quash the notice of hearing.
[The Board quashed the notice of hearing.]
E. H. Koester Bakery Co ., Inc.' and American Bakery and Con-
fectionery Workers International Union , Local No. 68, AFL-
CIO, Petitioner . Case No. 5-RC-3455. April 12, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. His rulings made at
the hearing are free from prejudicial error and are affirmed.
Upon the entire record , the Board finds : 2
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization named below claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer , within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit : The Employer , a Maryland corporation,
is engaged in the manufacture of bakery products with its plant at
Baltimore and distribution centers at Easton, Salisbury , Waldorf,
and Silver Spring, Maryland. Products baked at the Baltimore plant
are shipped daily via company -owned transport trucks for distribu-
1 The name of the Employer appears as amended at the hearing.
2 The Petitioner' s request for oral argument is denied as in our opinion the record and
briefs adequately present the positions of the parties.
136 NLRB No. 100.
E. H. KOESTER BAKERY CO., INC. 1007
tion at these locations. The Employer also operates two surplus (stale
products) stores in Baltimore, one of which is situated at the Em-
ployer's plant and the other situated approximately 10 blocks from
the plant. There is no history of collective bargaining at any of the
locations involved.
The Petitioner seeks a unit of production, sanitation, and inside
maintenance employees at the Baltimore plant. It would exclude
driver-salesmen, truckdrivers, garage employees, and store clerks, as
well as distribution center employees-all of whom the Employer
would include. At the hearing, counsel for the Employer stated that
the Employer has no salesmen as such but has driver-salesmen, and
that it employs no employees classified as timekeepers, time-study
employees, guards, watchmen, or professional employees, classifica-
tions also named in the petition. The parties stipulated that inside
maintenance employees include mechanics, mechanic helpers, engi-
neers, painters, carpenters, and carpenter helpers, and should, with
sanitation employees, be included in the unit. On the record as a
whole we construe "inside maintenance" to mean maintenance em-
ployees other than garage employees. They also stipulated that lead-
men do not have the power to hire or discharge and should be in-
cluded. Both would exclude office clerical employees.
Distribution center employees: The four distribution centers whose
employees the Employer would include are the following distances
from Baltimore: Easton, 54 miles ; Salisbury, 116 miles; Waldorf,
50 miles; and Silver Spring, 35 miles. In addition to their geo-
graphical separation from the main plant, the work differs at the
distribution centers, there is no employee interchange with plant em-
ployees, the distribution center employees have separate supervision,
and they are hired in the locality. On these facts, including the fact
that there has been no bargaining for any of the employees and no
union seeks to represent the broader unit including distribution cen-
ter employees, we find that a unit of employees limited to the Balti-
more plant is appropriate.3
Driver-salesmen: The Employer has 175 driver- salesmen . As pre-
viously stated, it has no salesmen other than driver-salesmen 4 It
appears that approximately 50 work out of the distribution centers
which we exclude from the unit. The remainder work out of the
plant where the production and maintenance employees are located.
These driver-salesmen are supervised by the sales manager and his
assistants. This sales manager hires and discharges them. Unlike
plant employees, they are paid on a commission basis, with $90 a week
3 See Foremost Dairies, Inc., 118 NLRB 1424, 1427; see also Barr's Jewelers, 131
NLRB 235.
* In testifying concerning the duties of the clerical employees discussed below and their
contacts with driver -salesmen, the Employer ' s president used "salesmen " and "driver-
salesmen " synonymously.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed salary. Individually their annual compensation varies
from $4,800 to $10,200. The Employer admitted on cross-examination
that they "are allowed to call on new accounts." Many of them have
selling experience when hired.
The driver-salesmen spend approximately half an hour in the plant
each morning, part of it in checking the loads which have already
been placed on their trucks by the loaders. Some return during the
day for additional products, which they load. At the end of the day
they return with approximately 10 percent of their load and spend
about 45 minutes in the stale room unloading the balance .5
The Employer would include the driver-salesmen in the unit,,
stressing the interdependence of selling and production functions in
its business. It also contends that there is interchange between driver-
salesmen and other classifications, and that all have common fringe
benefits. It minimizes the selling functions of the driver-salesmen
and emphasizes their daily contact with stale-room employees, point-
ing out that some have become stale-room employees, and that the
latter employees also do some driving in making deliveries to insti-
tutions. However, we are not persuaded that the contact of the-
driver-salesmen with the stale-room employees and the fact that both
make deliveries has significance in the context. The record shows
that the few driver-salesmen who have transferred to stale-room work
have done so at reduced pay in order to have less rigorous jobs after-
long service with the Employer. There is no indication that stale-
room employees are employed because of their selling abilities. We-
also note that the record does not support the contention of inter-
change between driver-salesmen and production and maintenance-
classifications.
On the record as a whole we conclude that these driver- salesmen
promote the sale of the Employer's products as an essential part of
their work. Based on this record we find that not only have these
driver-sa)lesmen little contact with production and maintenance em-
ployees, but that their interests by reason of their selling duties are
materially different from those of employees in the production and
maintenance unit. Accordingly, we shall exclude them from the
unit.'
Truckdrivers: The Employer has three truckdrivers who transport
products from the plant to the distribution centers. They report
to the plant, pick up their loaded trucks, and depart. They maintain
a log of their activities each day indicating time of departure and
5 The parties agree, and we find, that the stale-room employees, of whom there are
10 or 11, should be included in the unit
See Plaza Provision Company (P R ), 134 NLRB 910; see also Caskey Baking Com-
pany, 80 NLRB 374, where the Board, despite bargaining history on an all-employee basis,
recognized that driver-salesmen, transport drivers, and mechanics have interests apart-
from bakery employees.
E. H. KOESTER BAKERY CO., INC.
arrival at their destination. At two of the distribution centers they
help unload or transfer their loads to the trucks of the drive-salesmen
operating from such locations. The other distribution centers have
leaders who perform this work. On these trips the truckdrivers also
carry documents and communications between the plant and the distri-
bution centers. They are presently paid on an hourly basis, recently
changed from a trip basis. As most of their time is spent away from
the plant, they have little contact with bakery employees. Organiza-
tionally, they are under the supervision of the loading platform fore-
man.
The Petitioner does not seek to represent the transport truckdrivers.
The Employer urges their inclusion in the production and mainte-
nance unit. In several recent cases,' the Board reserved for further
study and consideration the policy of including truckdrivers in more
comprehensive industrial type units when the parties are in disagree-
ment as to their unit placement, and no union is seeking to represent
them separately.8
Self-organization among employees of a given employer is generally
based upon a community of interest in their occupation, more par-
ticularly in their common experience, duties, wages, hours, and other
working conditions. In determining the appropriate unit, the Board
takes into consideration and evaluates the various factors which tend
to show the presence or absence of this community of interest. The
above and related factors, as well as the organization of their em-
ployer's business and the history of collective bargaining among the
employees involved, are all entitled to weight in that determination.
However, the precise weight to be given to any of the relevant factors
cannot be mathematically stated. Generally, several considerations
enter into each decision.
The problem of the unit placement of truckdrivers arises when they
have a dual community of interest, which is created on the one hand
by their particular occupation with its special identifying factors
distinguishing them from other classifications of employees generally,
and on the other hand by their functional relationship to the opera-
tions of their employer and the common employment and working
conditions shared with f ellow employees.
In a few industries, the functional relationship of employees classi-
fied as truckdrivers to the occupation of other employees or to the
particular operation of the employer as a whole has been shown to be
so integrated as to substantially minimize, if not eradicate, any real
interests separate from those of other production employees, and
truckdrivers are therefore included in the production and maintenance
7 See Ballentine Packing Company , Inc, 132 NLRB 923, footnote 7; Ben Pearson's,
133 NLRB 636, footnote 5.
8 See Thomas Electronics , Inc, 107 NLRB 614; Challenge -Cooke Bros ., Incorporated,
129 NLRB 1235
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
units." In others, the nature of the production operation is such that
the interests of the production employees are completely different
from those of truckdrivers who are therefore excluded.10
However, the complexity of modern industry, with its many vari-
ables, precludes, for the most part, the application of fixed rules for
the unit placement of truckdrivers. For case experience has demon-
strated that a wide variation in conditions of employment governing
mutuality of interests exists both with respect to local and over-the-
road drivers of a given employer, and as between the various in-
dustries and from plant to plant within a given industry. Thus, in
a particular set of circumstances the truckdrivers' interests could be
sufficiently separate and distinct from those of other employees as
not to require their inclusion in a broader unit, whereas in other cir-
cumstances such interests could be, and we have held them to be, so
closely related to those of production employees as to warrant denial
of their severance from an overall unit.
It is for these reasons that the Board recognizes and accords sub-
stantial weight to an established course of dealings between an em-
ployer and his employees, as well as to the agreement of the parties,
in determining the unit placement of truckdrivers. For where a
successful history of their inclusion in a broader collective-bargaining
unit has been established, this fact gives rise to a presumption that
their community of interest with other employees is substantial. Simi-
larly, when the employer and the union involved have agreed either
to inclusion or exclusion of truckdrivers, there is a fair indication
that such agreement reflects the parties' collective experience and first-
hand knowledge of the particular operation involved as well as the
experienced judgment of the employees themselves as to the existence
of the mutual interests in working conditions shared by them which
should be present among the members of an appropriate unit.
However, when the parties are in disagreement as to the unit place-
ment of truckdrivers, there is no bargaining history, and no union is
seeking to represent them separately, it is incumbent upon the Board
to consider the pertinent factors present in order to determine wherein
the predominant interests of truckdrivers are vested. In treating
with this type of situation, the Board has, over the years, considered
various criteria as guides in its determinations. In large part, such
determinations were based upon the evidence presented in each case
bearing upon the factual situation as it reflected the existence of a
6 See Nettleton Timber Company, 87 NLRB 1319 ( logging industry ). Also see Benner
Tea Company , 88 NLRB 1409 ; Aster Packing Company, 80 NLRB 302 ( including truck-
drivers where driving was merely incidental to other skills involved in the production
process).
10 See Ad-Press Corporation, 119 NLRB 564 ; Jack Gordon et at. d/b/a Ivy Hill Litho-
graph Company , 121 NLRB 831 (excluding truckdrivers from lithographic production
units).
E. H. KOESTER BAKERY CO., INC. 1011
community of interest or lack thereof.ll In more recent times, how-
ever, the Board instituted and applied an automatic rule for the dis-
position of this issue, holding that in cases of disagreement by the
parties when no union was then seeking to represent truckdrivers
separately, they would be included with employees in the more com-
prehensive unit.12 This policy presently obtains.
We have carefully reexamined the treatment accorded truckdrivers
in unit placement cases. We are convinced that application of the
present automatic rule amounts to a refusal to consider on its merits
an issue, the resolution of which the parties have been unable to reach
based upon their collective experience and knowledge, and one which
is basic to a determination of the unit placement of truckdrivers. We
have therefore decided to abandon the blanket policy of including
truckdrivers in more comprehensive units and to return to the ap-
proach of predicating their unit placement in each case upon a de-
termination of their community of interest.13 In so doing, we shall
continue to accord to the history of collective bargaining and to the
agreement or stipulation of the parties the substantial weight which
has been given to these factors and which we find justified. Similarly,
where their representation in a separate unit is requested we shall
determine whether they may appropriately constitute a separate unit."
However, in the absence of such a request, we shall no longer hold
that inclusion is automatically required.
In our evaluation we shall consider, among others, the following
factors : (1) Whether they have related or diverse duties, mode of com-
pensation, hours, supervision, and other conditions of employment;
and (2) whether they are engaged in the same or related production
process or operation, or spend a substantial portion of their time in
such production or adjunct activities. If the interests shared with
other employees is sufficient to warrant their inclusion, we shall in-
clude the truckdrivers in the more comprehensive unit. If, on the
other hand, truckdrivers are shown to have such a diversity of inter-
est from those of other employees as to negate any mutuality of interest
between the two groups, we shall exclude them.
We turn now to the specific issue presented in the instant proceeding
with, respect to the truckdrivers. As noted above, there is no history
of collective bargaining; the parties are in disagreement as to whether
truckdrivers should be included in the production and maintenance
11 See, however , Kingan A Co . Incorporated , 61 NLRB 1222 , and cases immediately fol-
lowing it, when for this short period between 1945 and the enactment of the Taft -Hartley
Act, the Board applied a policy of excluding truckdrivers from more comprehensive units
whenever their unit placement was in dispute.
12 See footnote 8, supra.
13 Thomas Electronics , Inc., 107 NLRB 614, and The Valley of Virginia Cooperative Milk
Producers Association, 129 NLRB 785 , stating a contrary policy, are hereby overruled.
14 See Ballentine Packing Company, Inc, supra , footnote 7.
641795-63-vol. 136-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit requested; and no labor organization is seeking to represent truck-
drivers separately. Considering the duties and conditions of employ-
ment of truckdrivers and of the other employees included in the appro-
priate unit, we find that : The truckdrivers are functionally engaged
in the transportation of the Employer's product rather than its pro-
duction; in performing these duties truckdrivers are subject to regu-
lations affecting both their hours and working conditions not
experienced by plant employees; they thereby spend practically all of
their working time away from the plant and have little if any contact
with the bakery employees; and there is no interchange between plant
employees and truckdrivers. In these circumstances, we find that the
interests of truckdrivers are dissimilar to those of the production and
maintenance employees and shall exclude them from the unit requested
by the Petitioner.
We do not, as charged by our dissenting colleagues, herein hold
that agreement by the parties somehow changes the quantum of em-
ployees' mutuality of interest. On the contrary, we have given recog-
nition to the validity of an established Board policy 15 which encom-
passes a presumption that such agreement, whether contained in a
stipulation or given expression by bargaining history, and whether
for inclusion or exclusion, reflects the mutuality of interest as it
exists. The circumstance giving rise to the issue before us is the fact
that we have no such agreement. Accordingly, we have confined our
decision, as the Board has in similar situations in the past, to a de-
termination of the issue upon which there is disagreement.
With respect to the assertion that our determination gives con-
trolling weight to "the desires of the Petitioner" and considers "only
the desires of some of the parties-particularly the unions," we must
point out that in representation proceedings the unit named by the
Petitioner is always a relevant consideration. 16 And where there is no
agreement on the matter, the appropriateness of the unit requested in
the petition is necessarily an issue before the Board. This is true
151n The Baker and Taylor Co , decision ( 109 NLRB 245 , 247), the Board , Member
Rodgers participating, stated "Conelderation of the desires of the parties as to the compo-
sition of a bargaining unit always has been recognized by the Board as an Important factor
In promoting collective bargaining and in stabilizing labor management relations. Thus
it Is not only because of their value In saving the expenditure of effort and time by the
Government, but also because of their tendency to promote stability in labor management
relations , and to expedite the settlement of labor disputes , that consent -election agree-
ments have become it well-recognized device in the administration of the Act "
"I In connection with this elementary principle , we would merely point to the language,
to which our dissenting colleagues subscribed , in the Board ' s decision in United Butchers
Abattoir, Inc, 123 NLRB 940 , 954: "If, however , the Union ' s proposed unit Is , in part,
based on the extent of Its organizational efforts, It does not follow that such unit is neces-
sarily defective The Board has held that the effect of Section 9(c) (5) Is to preclude
the Board from giving controlling weight to the extent of the Union ' s organization In
determining the appropriateness of a requested unit If the appropriateness of the pro-
posed unit , as In the Instant case, Is indicated by other clear and decisive factors , there is
no reason why the Union's decision to seek representation of employees on a narrower
basis, should preclude the Board from finding the smaller unit approp'rlate."
E. H. KOESTER BAKERY CO ., INC. 1013
whether the petitioner is the employer , an individual , or a union. Be-
yond this , the only significance attributable to the fact that the Pe-
titioner herein wishes to exclude and the Employer would include
truckdrivers is that it establishes that disagreement as to their unit
placement exists between the parties and therefore the Board must
make this determination for them. As our analysis shows, we have
made that determination on the basis of the record evidence before us.
The garage mechanics : The garage is located in a separate building
approximately a block away from the bakery . It is separately oper-
ated and supervised by,a garage superintendent . Garage mechanics
repair, maintain , and inspect all company vehicles operated by the
driver-salesmen and truckdrivers . They operate tow trucks used to
perform repair work on the road or to bring in broken-down equip-
ment. They also deliver replacements for broken -down trucks and
help the driver transfer his load. Occasionally they may substitute
for a transport driver. Repair of production machinery is performed
by employees in the plant maintenance department , and there is no
interchange between garage mechanics and maintenance employees.
As the garage is a separately located and distinct operation from the
plant and garage mechanics have interests and working conditions
separate and distinct from those of production and maintenance em-
ployees , we shall, in accordance with Petitioner 's request , exclude them
from the unit found appropriate herein.
The Employer contends that the following employees are plant
clericals who should be included in the unit; the Petitioner that they
are office clericals.
Meade, Hanrahan, Solomon, Graves , Ashmenskas , and Pedone :
Meade and Hanrahan translate the salesmen 's orders into total
amounts and kinds of dough. Miss Solomon and Miss Graves receive
the salesmen 's order sheets from the distribution centers, total them,
and turn them over to Meade and Hanrahan . Miss Ashmenskas is
classified as a cashier . She also receives a copy of the salesmen's
order sheets as well as their reports on stale-room returns, and corre-
lates these documents and the cash turned in by the salesmen. All
these employees work in the general office area on the plant 's second
floor, physically separate from the plant , and there is no evidence
that they perform any tasks in the plant proper or have contact with
the production workers. Pedone's work as inventory and purchasing
clerk takes him into the plant to check inventory from . time to time,
but his office is in the same general office area and his duties include
the purchase of supplies and the keeping of a daily inventory. All
these employees we exclude as office clerical employees."
Widner: Widner 's duties consist of scheduling the production fa-
cilities of the plant for the products required each day. He prepares
1 See International Furniture Company, 119 NLRB 1462, 1465.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time schedules for the production department to show when a product
should be started and at what rate it should move. Although listed
on the payroll as an office employee, he is frequently in the plant
checking on schedules and seeing that they are adhered to, and is
thus in contact with production employees. We find that his duties
are those of a plant clerical employee and shall include him in the
unit.18
Druery. Miss Druery is shown on the payroll as an office secretary
but works in the production manager's office on the first floor of the
plant, and assists in keeping a record of the usage of ingredients.
There is no indication that her work takes her into the plant proper.
As the clerical work she does necessitates no contact with plant em-
ployees, we find that she is an office clerical employee.ls
Franz: Franz works with sales records exclusively, having no
office as such but working primarily in the settlement room where the
salesmen come in daily to settle their accounts. He files order sheets
and return sheets and has them ready for the drivers when they come
in. Based upon his duties as shown in the record, we find he is an
office clerical employee.20
Retail store clerks : The Petitioner would not include the retail
store clerks. These clerks work under the supervision of the stale-
room foreman, one at the major store which is at the plant, and one
at the store some blocks away. As these employees work different
hours from many plant employees and have dealings with customers,
we find that their interests differ from those of plant employees and
shall exclude them from the unit 2i
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act: All production and maintenance employees of
the Employer at its Baltimore, Maryland, plant, including sanitation
employees, stale-room employees, plant clerical employees, and lead-
men, but excluding office clerical employees, driver-salesmen, truck-
drivers, garage employees, retail store clerks, and supervisors as de-
fined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS RODGERS and LEEDOM, dissenting in part:
We disagree with so much of the decision herein as does not include
the truckdrivers and garage mechanics in the unit which is being
established. Our colleagues, at the request of the Petitioner and
' See Fairbanks, Morse t Company, 117 NLRB 1449, 1452.
1e See Ihckory Chair Company , 116 NLRB 1105, 1110.
20 See Hawthorne School of Aeronautics, 98 NLRB 1098, 1099.
a See Eastern Iron & Metal Company, 106 NLRB 1261 , 1264; compare Archer Mills, Inc.,
115 NLRB 674, 676.
E. H. KOESTER BAKERY CO., INC. 1015•
contrary to the request of the Employer, are excluding these em-
ployees from the unit because in their view their interests are "dis-
similar" or "separate and distinct" from those of the production and
maintenance employees. In reaching this conclusion they state in
effect that with respect to the truckdrivers (and presumably, although
they do not so state, with respect to the garage mechanics) they have
considered various factors for the purpose of determining whether
"the interests shared with other employees is sufficient to warrant their
inclusion" or whether they "are shown to have such a diversity of
interest from those of other employees as to negate any mutuality of
interest between the two groups" and thus to require their exclusion.
As our colleagues are excluding the truckdrivers and garage me-
chanics from the unit, they must on their own theory, although they
do not say so specifically, have concluded that the evidence negates
any mutuality of interest between them and the employees in the unit.
To say that the truckdrivers and garage mechanics have certain inter-
ests which are diverse from the interests of the other employees in
the plant is to belabor the obvious. But to say that they share no
interests with the other employees is to ignore the facts in the record
and the realities of industrial life.
Moreover, we fail to perceive how the agreement of the parties can
change the quantum of employees' mutuality of interest. Our col-
leagues say these truckdrivers and garage mechanics share no interests
with the other employees. Yet it is abundantly clear from our col-
leagues' rationalization of their result that, if the parties here had
agreed to include these truckdrivers and garage mechanics in the unit,
our colleagues would have included them; then they would have recog-
nized, as they have properly recognized with respect to the categories
the parties have agreed to include, that despite the obvious differences
which might warrant their separate representation if they were sep-
arately sought, these employees do have sufficient interests in common
with other employees to permit their representation in the same unit
when the alternative is no representation.
Notwithstanding their rationale, what the majority are doing here,
in effect, is to make the inclusion or exclusion of these employees turn
on the desires of the Petitioner. This case involves truckdrivers and
garage mechanics, but our colleagues' logic is equally applicable to
other craft and departmental groups traditionally included in produc-
tion and maintenance units. What also troubles us is that we cannot
tell what result would be reached when the logic of this rationale would
compel a decision not sought by a petitioning union. If the positions
of the parties here were reversed, with the Petitioner wishing to in-
clude these employees and the Employer desiring their exclusion, the
logic of our colleagues' rationale would require the exclusion of the
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, but the logic of our colleagues' action in this, and other
cases, would dictate their inclusion. Thus, in view of their decisions
in the Ballentine Packing and Intercontinental Engineering cases, in
which they also followed the logic of their action here,22 it would be
hazardous to predict that the logic of their instant rationale will be
applied evenly in the future.
It is not an answer to characterize.past Board policy as a blanket
policy or as an application of an automatic rule. Past Board policy
in this area has required application of such valid considerations as
the skills involved and the desires of all the parties. Our colleagues,
however, although they rationalize otherwise, seem to be considering
only the desires of some of the parties-particularly the unions.
Nor is there any warrant for our colleagues' assertion that the exist-
ing rule amounts to a refusal to consider an issue basic to unit place-
ment which the parties cannot resolve through collective experience
and knowledge. In providing a ready guide to employer and union
in situations where they cannot themselves agree upon unit placement,
we are not only taking into account the respective positions of each
party but, unlike our colleagues, are establishing a measure of cer-
tainty in an area where certainty is desirable, particularly in view of
the delegation to Regional Directors of authority in representation
cases. For, viewing the situation as we do, that the truckdrivers and
garage mechanics are not so lacking in a community of interest with
production and maintenance employees that they may not be included
in a production and maintenance unit, it then follows logically and
reasonably that if the parties cannot agree as to their unit placement,
as here, and no one seeks to represent them separately, they should not
be left unrepresented but should be included in the overall unit. To
do otherwise, as our colleagues do, necessarily results in an unsettling
effect on the Board's unit policy to the detriment of sound labor rela-
tions.
Accordingly, we would, contrary to our colleagues, include the
truckdrivers and garage mechanics in the production and maintenance
unit.
zz Ballentlne Packing Company, Inc , 132 NLRB 923, and Intercontinental Engineering-
Manufacturing Corporation , 134 NLRB 824 In those cases , involinvg truckdrivers and
machinists, respectively, the records revealed the pre,ence of factors which, under our
colleagues' rationale herein, established that such employees shared a community of inter-
est with other employees in production and maintenance unity Yet our colleagues refused
to permit those truckdrivers and machinists to vote whether they wished to be represented
as part of a production and maintenance unit because one union sought them separately
and the other union wished them excluded from its production and maintenance unit See
also Kalamazoo Paper Box Corporation , 136 NLRB 134, in which our colleagues deny
certain truckdrivers the right to sever from a production and maintenance unit, even
though there appear to be no substantial differences between their duties and interests and
the duties and interests of the truckdrivers to whom oui colleagues in the Ballentine case,
supra, denied the opportunity to join a production and maintenance unit