Dixon Bakeries, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1973

201 N.L.R.B. 978 (N.L.R.B. 1973)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dixon Bakeries, Inc. and Bakery and Confectionery
Workers International Union of America, Local
Union 12-A, AFL-CIO, Petitioner. Case
6-RC-6098
February 21, 1973
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and
approved by the Acting Regional Director for
Region 6 of the National Labor Relations Board on
April 26, 1972, an election by secret ballot was
conducted on May 5, 1972, among the employees in
the unit described below for the purposes of
collective bargaining. At the conclusion of the
election, the parties were furnished a tally of ballots
which showed that of approximately 17 eligible
voters 16 cast ballots of which 8 were for and 6 were
against the Union. There were 2 challenged ballots.
The challenged ballots are sufficient to affect the
results of the election.
On May 12, 1972, the Employer filed timely
objections to conduct affecting the results of the
election. The Regional Director caused an investiga-
tion of the objections and the challenged ballots to
be made and thereafter, on July 3, issued and served
on the parties his Report on Objections and
Challenged Ballots and Notice of Hearing. In his
report, the Regional Director recommended to the
Board that all the Employer's objections be over-
ruled in their entirety but that a hearing be held for
the purpose of taking testimony as the issues raised
by the challenged ballots. No timely exceptions to
the Regional Director's report or special permission
to appeal from his Order having been filed by either
party within the time provided therefor, the Board
adopted the Regional Director's recommendations
and ordered that the Employer's objections be
overruled in their entirety. The challenges to the
ballots of Charles Basista and Paul Wilson were to be
processed pursuant to the Regional Director's Order
and Notice of Hearing.
Pursuant to the aforementioned Notice of Hearing,
a hearing on challenged ballots was held on August
3, 4, and 25, 1972, before Hearing Officer William R.
Wollett. On October 31, 1972, the Hearing Officer
issued his Report on Challenged Ballots in which he
recommended that the challenge to Charles Basista's
ballot be sustained and the challenge to the ballot of
' Basista is a full -time employee at Allegheny Ludlum Steel and works
the "swing shift" there . Thus, while Basista normally works Monday
through Friday, his sequence calls for him to work from 8 a.m. to 4 p.m. the
Paul Wilson be overruled, and that the Union be
certified as the exclusive bargaining representative
for all employees in the appropriate unit . Thereafter,
on November 13, 1972, the Employer filed timely
exceptions to the Hearing Officer's report and a brief
in support of the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the Employer within the
meaning of Sections 9(c)(1) and 2(6) and (7) of the
Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All production and maintenance employees em-
ployed by the Employer at its Arnold, Pennsylva-
nia, location; excluding all truckdrivers, selling
employees, office clerical employees and guards,
professional employees and supervisors as de-
fined in the Act.
5. The Board has considered the Hearing Offi-
cer's report and recommendation and the Employer's
exceptions and brief and hereby adopts the Hearing
Officer's findings, conclusions , and recommenda-
tions only to the extent consistent herewith. The
Employer's exceptions to the Hearing Officer's
report raises substantial issues of fact which, in our
opinion, warrant reversal of the Hearing Officer's
conclusions and recommendation regarding the
ballot of employee Charles Basista.
The Hearing Officer found that (a) Charles Basista
was a truckdriver and thereby specifically excluded
from the unit; (b) he is an independent contractor,
rather than an employee, and thereby excluded from
the unit; and (c) he lacks a sufficient community of
interest with other unit employees and is thereby
excluded from the unit. We disagree with these
findings.
Charles Basista was hired by the Employer as a
maintenance employee to service the machinery
involved in the Employer's basic production line.'
Basista regularly averages 15 hours each week and
has worked as many as 30 hours in a week, but he
first week, from 4 p.m to midnight the second week , and from midnight to 8
a.m the third week.
201 NLRB No. 143
DIXON BAKERIES, INC. 979
works no formalized schedule. He performs mainte-
nance work at the Employer's Arnold, Pennsylvania,
bakery and also at the Employer's six retail outlets
located in Lower Burrell, Freeport, Leechburg,
Vandergrift, Apollo, and Russellton. Basista's main-
tenance duties at the bakery entail oiling motors,
greasing and tightening racks , repairing ovens, and
servicing various machines such as the sounder, the
sheeter, and the cookie machine . In addition Basista
performs needed repairs on the Employer's truck. On
weekends , Basista will accompany regular truckdri-
ver Bill Seger on his route so as to perform
maintenance work at the various Dixon Bakery
outlets in the area. At the retail outlets, Basista's
maintenance duties include changing lights and
fuses , fixing broken doors , replacing sliding glass
doors in counters , and performing some maintenance
on various machines such as soft drink blenders.
Basista also performs truckdriving duties every
third week for 2 to 5 days within the week. On these
occasions , Basista arrives at the bakery at approxi-
mately 4 a.m., loads products onto the truck and,
usually around 5 a.m. but possibly as late as 7 a.m.,
leaves the bakery and proceeds to Dixon's various
customers and retail outlets . Basista works by himself
and it takes him approximately 4 to 6 hours to make
the deliveries. The evidence shows that Basista
performs this truckdriving duty at the request of Bill
Seger, his father-in-law who lives next door to him
and is the regular Dixon truckdriver. Basista drives
the truck through an arrangement made with his
father-in-law, but Basista is not paid by the Employ-
er for his truckdriving duties. On these occasions,
Basista does not drive the truck but may help Seger
unload only after any required maintenance work is
performed.
Basista performs no production work. He adjusts
his schedule so as to minimize his contact with unit
employees in order to facilitate making repairs to the
production machinery. Basista also removes employ-
er equipment from the bakery to his own residence to
perform needed repairs.
Basista has no direct supervision, he sets his own
hours and has permission to enter the bakery at any
hour. Basista, and sometimes Seger, simply turns in
Basista 's hours and he is paid for the number of
hours reported. Although Basista is paid on an
hourly basis, unlike other employees, no deductions
are made for Social Security, state income tax,
Federal income tax, or city tax. Basista's name does
not appear on the Employer's list of employees in its
Report of Wages Taxable under the Federal Insur-
ance Contributions Act for the quarters ending
March 31, 1972, and June 30, 1972. Basista's wages
are drawn from a special account that is used to pay
employees who are characterized as part-time em-
ployees.
On the foregoing facts the Hearing Officer found
three grounds for his recommendation that the
challenge to the ballot of Charles Basista be
sustained : ( 1) Basista is a truckdriver for the
Employer and that category is specifically excluded
from the unit ; (2) Basista is an independent contrac-
tor; (3) Basista lacks a community of interest with
the employees in the unit . We disagree.
The facts in this record cannot justify a finding that
Basista is a truckdriver for the Employer or that he is
an independent contractor . Only a question as to his
community of interest with the production and
maintenance employees in the unit is open to
question . The record shows Basista is the only
employee hired to perform maintenance duties. He
works on an average of 15 to 30 hours per week and
the majority of the time is spent in maintenance
duties, of which at least three -fourths of the time is
spent at the Employer's Arnold plant . Though some
of his work is conducted at home , it is nevertheless
directly related to and is part and parcel of the
maintenance of the Arnold plant production line.
Basista is the only employee looked on by other
production employees as being engaged in mainte-
nance duties, and he is the only employee capable of
performing such duties . Service of the production
machinery must be performed when the machinery is
temporarily inoperative and Basista works on this
machinery when other employees are absent because
of the Employer's concern for safety and efficiency.
Other than emergency service , these activities would
interfere with the normal production schedule and
perhaps disrupt vital parts of the entire production
operation . The "off-hour" times selected by Basista
enhance production and constitute a function that is
an essential part of the Employer's normal operation.
Basista's duties directly affect the production line as
maintenance on the production machinery is re-
quired to maintain normal production activities.
In view of the foregoing, we find that Basista has a
community of interest with the production workers,
and, as he is the only maintenance employee in a
"production and maintenance" unit , we shall order
that the challenge to Basista 's ballot be overruled.
The Hearing Officer recommended that the chal-
lenge to the ballot of Paul Wilson be overruled. As
no exception was filed thereto, and as our review of
the record shows that Paul Wilson was performing
work within the unit on a regular basis for a
sufficient period of time during each week to
demonstrate that he had a continuing interest in the
wages, hours , and working conditions of full-time
employees in the unit, we shall order that the
challenge to Wilson 's ballot be overruled.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall direct the Regional Director and count the ballots cast by Charles Basista and
to open and count the ballots of Charles Basista and Paul Wilson, and to issue a revised tally of ballots,
Paul Wilson and to issue a revised tally of ballots and including therein the count of said ballots, on the
an appropriate certification. basis of which he shall issue the appropriate
certification.
DIRECTION
The Regional Director is hereby directed to open