Faulks Brothers Construction Co.

National Labor Relations Board - Board Decisions

Jun 2, 1969

176 N.L.R.B. 324 (N.L.R.B. 1969)

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sydney Faulks and Oliver Faulks d/b/a Faulks
Brothers Construction Co. and General Drivers
and Dairy Employees Union, Local No. 563,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Case 30-CA-874
June 2, 1969
DECISION AND ORDER
By MEMBERS FAN NING, BROWN , AND JENKINS
On February 18, 1969, Trial Examiner David S.
Davidson issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Gmsel, the Charging Party, and the Respondent
filed exceptions to the Trial Examiner's Decision
and the General Counsel and the Respondent filed
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as modified herein.
The Trial Examiner found that a unit of
Respondent's truckdrivers is appropriate, but that it
includes 12 employees. As the Union had cards
from only six employees, he concludes that it did
not have a majority. In finding a 12-man unit, the
Trial Examiner includes, contrary to the contention
of the General Counsel and Charging Party, four
employees who drive trucks on a part-time or
seasonal basis. We agree with the Trial Examiner as
to the inclusion of these employees.
With respect to employee Clarence Schuelke, one
of the four included in the unit, the General Counsel
contends that, although he spends approximately 50
percent of his time driving trucks, nevertheless,
Schuelke does not share a sufficient community of
interest with Respondent's other truckdrivers to
warrant his inclusion. The General Counsel argues
that he works on a different crew under separate
supervision and his driving duties are of an entirely
different nature than those of the other truckdrivers.
Schuelke is the regular driver of the 5-yard dump
truck. Approximately 50 percent of the time this
truck is used in connection with blacktopping and
curb and gutter work. When used in connection with
blacktopping, it is used to haul blacktop and
crushed gravel to the site, to spread the blacktop,
and to haul the basic tools to and from the site.
When used in connection with curb and gutter work,
it is used to haul lumber, steel , and other materials
required by that crew.
During at least part of the remaining 50 percent
of the truck's operation time it is used by Schuelke
to make deliveries to customers. Schuelke also
drives a 10-yard dump truck while making such
deliveries. While the extent of Schuelke's deliveries
to customers is not entirely clear, it is clear that he
makes such deliveries on a regular basis.'
What else, if anything, the 5-yard truck is used
for is not set forth in the record.
As Schuelke spends approximately 50 percent of
his time driving trucks and spends a substantial
portion of that time delivering orders to customers
and hauling blacktop, gravel, lumber, steel, and
other materials to Respondent's construction sites,
Schuelke, in our opinion, shares a community of
interest with Respondent's other truckdrivers and is
properly included in the appropriate unit of
Respondent's truckdrivers.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint be, and it hereby is,
d ism issed.
'When asked about Schuelke ' s duties, Sydney Faulks included the
deliveries to customers in the 5-yard and iO.yard trucks in the list of such
duties Richard Buck corroborated this testimony by indicating that
Schuelke drives the 5-yard truck in making such deliveries and that
Schuelke drives the 10-yard truck (although he did not indicate the
purpose).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Pursuant to
charges filed on August 19, 1968, by General Drivers and
Dairy Employees Union, Local No. 563, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter
referred to as the Union, a complaint issued on November
5, 1968, alleging that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing since on or about August 6,
1968, to bargain with the Union as the representative of
Respondent's truckdrivers. The complaint also alleges that
a strike commenced on or about August 6, 1968, and was
caused and/or converted and has been prolonged by
Respondent's unfair labor practices. In its answer
Respondent denies the commission of any unfair labor
practices.
A hearing was held before me in Waupaca, Wisconsin,
on December 19 and 20, 1968. At the close of the hearing
the parties waived oral argument and were given leave to
file briefs, which have been received from the General
176 NLRB No. 37
FAULKS BROTHERS CONSTRUCTION CO 325
Counsel and Respondent
Upon the entire record in this case , and from my
observation of the witnesses and their demeanor I make
the following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Sydney Faulks and Oliver Faulks are partners doing
business as Faulks Brothers Construction Company at
Waupaca Wisconsin where they sell and deliver
ready-mix concrete and other supplies to the building and
construction industry and also are engaged as contractors
in the building and construction industry During the
calendar year prior to the issuance of the complaint, a
representative period , Respondent purchased goods and
materials valued in excess of $50 ,000 which originated
outside the State of Wisconsin I find that Respondent is
an employer engaged in commerce within the meaning of
the Act and that assertion of jurisdiction herein is
warranted
II THE LABOR ORGANIZATION INVOLVED
General Drivers and Dairy Employees Union, Local
No 563, affiliated with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of
America , is a labor organization within the meaning of
Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
1 The Organization of Respondent 's drivers
In May 1968, Sydney Faulks received a report that one
of the jobs to which he was supplying concrete might be
picketed because he was hauling concrete on the job As
a consequence Faulks arranged a meeting with Marv
DeVries, a Teamsters representative The meeting took
place on May 23 Representatives of the Operating
Engineers and the local Building Trades Council also were
present Faulks asked whether he could obtain a permit
so as to be able to continue hauling concrete to jobs being
performed by union labor The union representatives
replied that he could not and indicated that they would
picket the job which Respondent was then supplying if
Respondent did not sign an agreement with the
Teamsters The conversation continued for some time
while those present discussed what the unions would want
as contract terms DeVries gave Faulks a sample contract
for informational purposes and the Operating Engineers
representative told him that they would give him until the
following Monday to reply Faulks stated that they had
given him more to think about than he could handle
within that time and that he doubted that they would hear
from him by then '
After this meeting Faulks sought legal advice and was
told among other things that if a union tried to present
him with cards he should not look at them but tell the
union that he did not believe that the cards represented an
uncoerced majority of his employees He was advised that
under no circumstances should he leave himself open to
negotiations by looking at cards Respondent continued to
'Sydney Faulks testimony as to this meeting was uncontradicted
service its customers after his meeting with the Union
representatives and did not contact the Union
On August 1, Robert Schlieve , secretary-treasurer and
principal representative of the Union , met with four of
Respondent ' s employees , William Peters , Godwin Voss,
Richard Buck , and Norman Penney all of whom then
drove ready-mix trucks Schlieve explained to them the
wage rates and fringe benefits under an existing
association -wide ready-mix contract in the Appleton,
Wisconsin , area He told them that to secure recognition
from Respondent it was necessary for them to sign
authorization cards for the Union The employees
indicated that they wanted a unit limited to ready-mix
drivers Schlieve asked if Respondent employed other
truckdrivers , and they indicated that it did As a result of
their discussion Schlieve concluded that there were eight
drivers who would constitute an appropriate unit He told
the employees that as there were only four of them, they
would not constitute a majority which would be necessary
for recognition Schlieve stated that before he could make
a demand for recognition they would have to secure a
signed card from at lease one more employee The
employees decided to approach Gene Eastman Schlieve
gave them cards for them to sign and to take to Eastman
and he instructed them to call his office if they secured
five signed cards so that the cards could be picked up on
the following day Schlieve explained that in the event that
a majority signed cards , copies of the cards would be sent
to Respondent with a demand for recognition , as proof of
the Union ' s majority status The four employees and
Eastman whom they visited that night, signed cards The
next day the cards were transmitted to Schlieve
2 The picketing at the plant
On the morning of August 6 the employees who had
signed cards did not report for work , but along with
Union representatives and some other persons set up a
picket line outside Respondent 's yard I The picketing
began around 6 45 in the morning The picket line was
placed next to the highway in front of the driveway
leading into the Respondent's office and yard The pickets
carried signs which indicated that the employees of
Faulks' Brothers Construction Company were members of
Teamsters Local 563 and were on strike During the day
the signs were carried by various persons on the picket
line including the employees of Respondent
Shortly after the picketing started employee Gordon
Woodard approached the picket line and stopped on the
shoulder of the highway Schlieve and Jeff Curtin , another
Union representative, went to Woodard 's car and told him
that a majority of Respondent ' s truckdrivers had
designated the Union as their bargaining agent and were
engaged in picketing to secure recognition from the
employer in the attempt to negotiate a contract Woodard
asked if he could go to work Schlieve told him that he
could and that it was a decision he would have to make
but that they would appreciate his cooperation since he
would receive all the benefits of any contract negotiated
Woodard indicated that he wanted to be with the rest of
the drivers Schlieve told him that if he wanted to be with
them, he should sign an authorization card and authorize
the Union to bargain for him to solidify the drivers'
'Norman Penney had been given orders the night before to report for
work early in order to deliver a load of concrete He went to the plant at
5 30 in the morning delivered a load of concrete returned to the yard
cleaned out his truck and then left to join the picket line
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position with the Respondent Woodard signed a card and
gave it to Schlieve He asked if he had to picket, and
Schlieve replied that he did not as long as he was with
them and that it would help the other drivers if he merely
stayed home Woodard left and did not work that day
At the time the picketing started Sydney Faulks was
away on vacation, and Oliver Faulks had been absent
from Respondent ' s premises for approximately one
month , with minor exceptions, recuperating from an
operation Shortly after the picketing began, Oliver Faulks
was called to come to the plant As Faulks pulled into the
driveway of the plant he stopped and asked Schlieve what
was going on Schlieve told him that the Union had a
picket line and represented a majority of the truckdrivers
He stated that he had cards to prove it and asked,Ujiulks
to bargain with him Faulks said he had nothingbto do
with it and drove into the yard to park his car A few
minutes later he came back to Schlieve, and Schlieve
as ked him to get together and settle the matter Faulks
reached into his pocket, pulled out a card, handed it to
Schlieve He said that he did not want to talk to Schlieve
but that Schlieve should talk to the man whose name was
on the card The card bore the name of an attorney and
indicated his association with the law firm representing
Respondent in this case Schlieve looked at the card,
laughed, and fold Faulks that the attorney whose name
waon the card was no longer with the firm He added
that he did not want to talk with an attorney but wanted
to talk with Faulks because the striking employees worked
for him ' Faulks left and went towards his office
Shortly Faulks returned with a camera and attempted
to take pictures, but each time he tried to do so Schlieve
placed his hand in front of the lens of the camera
Schlieve again sought to induce Faulks to talk with him,
but Faulks repeated that he had nothing to say to Schlieve
and went to his office
During that day word of the strike was sent to Sydney
Faulks He immediately returned from his vacation
arriving at his office in the late afternoon and observing
the employees on the picket line as he entered The
picketing continued every day thereafter and was in
progress at the time of the hearing However, as the
Respondent's employees obtained other employment, they
left the picket line
3 The Union's letters to Respondent
On August 6, Schlieve sent a certified letter to
Respondent In it he claimed that the Union represented a
majority of the employees in a unit of all truckdrivers and
requested recognition With the letter he enclosed
photostatic copies of the six authorization cards that he
had then received On the following day Respondent
refused delivery of the letter and it was returned to the
Union unopened
'Both Schlieve and Oliver Faulks testified as to their encounters on the
morning of August 6 and there are conflicts in their testimony According
to Faulks Schlieve did not request recognition or state that he represented
a majority of the truckdrivers at any time but merely asked Faulks to get
together with him to we what they could do about the situation Faulks
also testified that Schlieve did not say that his attorney had left the firm
but that the law firm was no longer in business As the attorney whose
name was on the card had left the law firm shortly before these events, as
Schlieve had dealings relating to other employees with the law firm during
that period and as it is unlikely that Schlieve, an experienced Union
representative faded to state the nature of the situation that he wanted to
discuss with Faulks , I have credited Schlieve, and not Faulks, as to their
encounters
On August 7, Respondent's attorneys wrote the Union,
stating that delivery of the Union's letter to Respondent
had been refused and notifying the Union that they had
been retained by Respondent and were authorized to
direct the Union that any communication which it desired
to have with Respondent be directed to them
On August 9, 1968, Schlieve addressed a second letter
to Respondent at its offices In it he reiterated his claim
to represent Respondent's truckdrivers and again
requested a meeting with Respondent He asserted that he
had sought to arrange a meeting through Oliver Faulks
and that Faulks had refused to meet with him He
charged that Respondent ' s conduct was a breach of its
obligation to bargain with the Union and stated that the
Union would file unfair labor practice charges with the
Board Respondent also refused delivery of that letter
4 The meeting between the Faulks brothers and
Schlieve
At this time Respondent had a contract to supply a
substantial quantity of concrete, amounting to
approximately one-third of its annual sales, to a
construction job being performed with union labor by
Hutter Construction Company Soon after the picketing
began, representatives of Hutter Construction Company,
who were anxious to avoid interruptions to concrete
deliveries to the job, contacted the Faulks brothers and
urged them to meet with the Union to see if they could
settle the dispute and end the picketing On August 12,
Sydney Faulks told Hutter's superintendent that he would
meet with a Union representative for the purpose of
listening to the Union but without any obligation
On the night of August 13, the meeting was held at the
Rainbow Supper Club in New London, Wisconsin
Sydney and Oliver Faulks attended for Respondent
without counsel Schlieve represented the Union and was
accompanied by Elmer Jacobson a representative of the
Appleton Building Trades Council Al Beaudry, general
superintendent for Rutter Construction Company, also
was present
At the outset of the meeting in response to a question
of Sydney Faulks, Schlieve explained that Jacobson was
present because of his concern that Hutter's project not be
curtailed, and Jacobson indicated that he had no other
interest in the matter During the meeting, which lasted
for about 2 hours, Schlieve explained that he was only
there to talk about the truckdrivers and not about any of
the Respondent's other employees Faulks made some
comments about the drivers who were picketing, and
stated that Woodard, who had returned to work 2 days
before, did not want any part of the Union Schlieve
opened the letter which he had sent Respondent on
August 6, took out the copies of the Union authorization
cards that were enclosed, and placed them in front of
Faulks Faulks looked at them, and Schlieve asked him if
he recognized the signatures Faulks laughed and replied
that he would not even recognize his wife's signature if he
saw it On further questioning by Schlieve, Faulks stated
that he did not question that the Union had the cards and
that he had observed the employees on the picket line
'The meeting was arranged by intermediaries, and it was Faulks
understanding that it would be off the record Apparently at the insistence
of the Union , he agreed to attend unaccompanied by an attorney
'Schlieve Jacobson and Sydney Faulks all testified as to what was said
at this meeting Where their testimony is in conflict, I have credited
Schlieve as corroborated by Jacobson Although Oliver Faulks was also
FAULKS BROTHERS CONSTRUCTION CO. 327
Schlieve and Faulks discussed the existing wages and
terms and conditions of employment of Respondents'
employees. Schlieve told Faulks at some length what the
Union would want as the terms of a contract and gave
Faulks a copy of a master agreement applying to the
Appleton area for informational purposes but told him
that it was not to be construed as a proposal. During the
meeting Beaudry indicated that he was anxious to start
pouring concrete 2 days later. At the conclusion of the
meeting when discussion had been exhausted Faulks
indicated that he would meet with his lawyers on the
following morning and get an answer to Schlieve. Schlieve
indicated that as soon as Faulks contacted him he would
have a contract typed so that they could get the matter
settled in time to fit Beaudry's schedule.
Following this meeting Sydney Faulks did not contact
Schlieve again. On August 16, Schlieve wrote
Respondents' attorneys in reply to their letter of August
17. In his letter he stated that his business was with the
Faulks brothers as principals and that he had reason to
believe that Respondent's attorneys had over-represented
the scope of their authority, but that he was not interested
in becoming involved in questions as to their authority.
He continued that as a matter of courtesy he was
enclosing a copy of his August 9 letter to Respondents
and asserted that he continued to insist that Respondent
recognize and bargain with the Union as the
representative of the truckdrivers.
On August 19 Schlieve received a reply to his letter in
which Respondents' attorneys stated that if Schlieve
continued to doubt that they represented Respondents
they would furnish written proof. The letter also stated
that Respondent doubted that the Union represented an
uncoerced majority of Respondents' employees in an
appropriate unit.
5. Woodard's attempt to withdraw his authorization
card
As set forth above, on August 11, Woodard returned to
work and continued to work thereafter. Shortly after
August 15, 1968, Schlieve received a letter bearing that
date from an attorney in Weyauwega, Wisconsin, in which
he asserted that he had been requested by Gordon
Woodard to write Schlieve. The letter asserted that
Woodard now understood that he had signed a union
membership application and had no intention at the
present time of joining the Union or participating in any
of its activities and therefore requested that the card he
present t r^Ziout this meeting and testified with respect to other matters,
he was not questioned about the events at this meeting , and Beaudry did
not testify. Sydney Faulks testified that when Schlieve stated near the
outset of the meeting that he had five or six of the drivers signed up, his
brother Oliver said they were not there to discuss recognition, and he
stated that they were there to talk informally and not to talk about
recognition . According to him , the conversation then turned to the contents
of Teamster contracts . He testified that at the and of the meeting , Schlieve
attempted to show him the cards and he resisted efforts by Schlieve to
induce him to concede that the cards had been signed by his employees,
following the advice of his attorneys that he lacked the capacity to judge
whether the Union represented them . I have not credited his
uncorroborated testimony . I have considered Respondent's argument that
Faulks' version is more plausible than Schlieve's in the light of
Respondent 's other actions during this period and the advice he had
received. However , in view of the pressures upon Faulks to which he
acceded in attending the meeting and his impression that the meeting was
off the record I do not consider it implausible that he made the statements
attributed to him by Schlieve . Their significance is of course a separate
question.
had signed be returned to him. The attorney also stated
that he assumed that Woodard intended to wait for a
representation election in the event that one was held.
On August 23, Schlieve replied by letter asserting that
at the time Woodard signed the application for
membership he fully understood what he was signing and
its contents were explained to him. Schlieve asserted that
no mention of a representation election was made at the
time. He stated that he would not return Woodard's
application and did not wish to discuss the matter further
with the attorney. He expressed the view that Woodard
had designated the Union to represent him in the area of
collective bargaining and not his attorney. Insofar as the
record indicates there were no further communications
with respect to Woodard's card.'
6. Respondent's work force
At the time the Union's picketing began, Respondent
employed 23 employees apart from supervisors. Four were
students who worked for Respondent during their summer
vacations . Respondent engages in several different
operations which are seasonal in nature. It engages in
general excavating, sale and delivery of ready-mix
concrete, crushing of sand and gravel, heavy equipment
operation, black top, curb, and gutter construction, and
installation of septic tanks.
Respondent owns and operates six ready-mix trucks,
one of which can be converted into a dump truck for
other uses. It has two other large dump trucks and a
smaller 5-yard dump truck. Respondent also owns a
tractor and a trailer, referred to as a low-boy, which is
used for hauling heavy equipment to jobsites. Its heavy
equipment includes three or four drag lines, two
bulldozers, two or three end-loaders, and a tractor
equipped with a bucket and a blade.
The construction season lasts approximately from April
through October each year. During the slack season
starting in November and continuing for from 3 to 5
months Respondent assigns some of its employees to drive
its two large dump trucks and the converted ready-mix
truck to haul sand and gravel from sand and gravel pits to
its yard for stockpiling for the next ready -mix season.
During that period the hauling - in operation continues
around the clock with three shifts of drivers.' At other
times of the year materials are hauled in on a sporadic
basis if supplies run low.
There are two employees, Alvin Ratzburg and Marlyn
Handrich, whose principal duties are driving the two large
dump trucks. Ratzburg occasionally has done other odd
jobs around Respondent's yard, and Handrich
occasionally operated a back hoe if Bruce Helbach, the
regular operator , was unavailable . During the construction
season they hauled sand, gravel , and other materials to
Respondent ' s construction sites and to customers of
Respondent . During the slack season they drove in the
stockpiling operation. Ratzburg is paid $1.95 an hour, and
Handrich is paid $2 or $2.10. According to Sydney
Faulks, they drove more than any of Respondent's other
employees. The dump truck drivers are supervised by
'Woodard did not appear as a witness in the hearing before me and the
letters described above are the only evidence relating to an attempted
withdrawal by Woodard of his union authorization card. Oliver Faulks
testified that before Woodard returned to work, Woodard spoke to him
about coming back to work and claimed that he had signed the card for
the Union after being told that he would lose his job unless he signed.
'During this operation drivers load their own trucks using an end loader.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's dispatcher Schlafer.
At the time the picketing started, there were six
employees who were regularly driving the ready-mix
trucks. They were Norman Penney, William Peters,
Gordon Woodard, Godwin Voss, Gene Eastman, and
Richard Buck.
During the ready- mix season , these employees drove
ready-mix trucks whenever there was ready-mix to be
delivered. They estimated that they spent from 80 to 90
percent of their time delivering ready-mix and performing
related duties. The related duties included filling bins with
ready-mix materials, weigh hatching their own loads, and
pouring excess concrete left after deliveries in forms at
Respondent 's yard. Weigh hatching took from 5 to 10
minutes for a load, and filling bins took from half an hour
to an hour. The latter job was not required for every load,
and the drivers took turns at doing it when there were no
deliveries for them to make. During heavy delivery
periods, other yard employees weigh batched and filled
bins. At least some of the drivers as well as other yard
employees built forms for the excess concrete when there
were no deliveries to be made. These were for manhole
covers , parking lot bumpers, and slabs for mason's sand.
When drivers returned with excess concrete, they poured it
into the forms and leveled it.
During their slack time the drivers also serviced their
trucks and performed minor repairs on them. Although
there is some testimony that each driver was regularly
assigned to a single truck , it appears that there was some
changing of trucks among the drivers. Of the six drivers,
only Eastman had a chauffeur's license which he obtained
when he was not employed by Respondent.' On occasion
some of the drivers were assigned to work with
construction crews when there was no delivery work for
them.
During the slack season , Penney made such ready-mix
deliveries as there were, estimating that he was so
occupied approximately 50 percent of the time. The
remainder of his time he worked around the shop
servicing trucks and he occasionally drove a dump truck.
Voss was employed in April 1968 and had never worked
during a slack season . The remaining four drivers had
driven dump trucks hauling in materials for stockpiling
during past slack seasons.
Of the six employees, Penney was paid $2 an hour.
Eastman, who was discharged in March, 1968, and
reemployed in July, was paid $1.95 an hour. Peters was
paid $1.90, and Woodard and Voss were paid $1.85 an
hour.
Buck, whose pay rate does not appear, was employed
for approximately 7 years until July 1, 1968, on the curb
and gutter crew engaged principally in construction work.
During that period he served as a substitute ready-mix
driver. He estimated that he drove about 20 percent of the
time during that period. On July 1, 1968, around the time
that another ready-mix driver left, Buck was assigned to
drive a ready-mix truck, and did so practically all of the
time thereafter until the picketing started.
Sydney Faulks testified without contradiction, and Voss
corroborated him as to his own hire, that all his
employees were told when they were hired that they would
'According to Sydney Faulks, he believed that a chauffeur's license was
required if 50 percent or more of an employee's income was derived from
truckdrivmg. He testified that he had checked with the police and
understood that none of his employees were required to have chauffeur's
licenses . No other evidence was adduced as to the circumstances under
which a chauffeur's license was required.
be required to do whatever was available and they were
not guaranteed any specific duties to perform. Emloyees
were used where needed and trained to be useful in
various jobs. However, Faulks also testified that when
there was a driving job to be done, an employee was
assigned to it and left on it until he was needed elsewhere.
Employees were not switched around for the sake of
switching but left on an assignment as long as possible.
Employees' pay rates remained constant regardless of
their assignments, and all employees received the same
insurance and vacation benefits.
As for Buck, Faulks testified that his assignment to
ready-mix driving was intended to be temporary and was
made because he needed to keep the trucks operating.
Faulks, however, did not tell Buck that the assignment
was temporary, and he testified otherwise that no job
assignments were of definite duration.
In addition to the two dump truck drivers and the six
ready-mix drivers Respondent employed a number of
other employees.
Two employees, Carl Jensen and Clarence Lipke,
operated Respondent's crushing plant at a sand and gravel
pit. Jensen was paid $2.10 or $2.15, and Lipke was paid
$2.30 an hour. The crushing plant operates from June to
October. Lipke's duties during the off season are not
indicated,' but Jensen drives a dump truck in the
stockpiling operation.-
The curb and gutter crew was supervised by Everett
Roloff. Others on the crew were Clarence Schuelke,
Bruce Helbach, Gene Johnson, and Ronald Moser." The
curb and gutter crew does curb and gutter work, black top
work, and septic tank installations.
Clarence Schuelke worked as a general laborer on this
crew and drove the 5 yard dump truck, mostly in
conjunction with its work. Others on the crew also drove
the truck, and as set forth below, the record is not entirely
clear as to the extent of Schuelke's driving duties. The
truck is used principally to haul black top to construction
jobs, and to haul gravel and other materials to
construction jobs and to customers. Schuelke also drove a
larger dump truck on occasion. Schuelke did not drive
during the stockpiling operation, and insofar as the record
shows, he did not work for Respondent during the slack
season . He was paid $1.85 an hour.
Bruce Helbach usually operated a back hoe in
connection with the installation of septic tanks. He drove
the low-boy to move his back hoe from job tc fob."
'Faulks testified that Lipke was in line with others for off season work
and took a turn with others in driving. Peters testified that Lipke did not
drive much that he knew of, and no one testified that he was a regular
stockpiling driver. I find that he had no appreciable driving duties.
"Although Buck testified that Jensen had continued to operate the
crushing plant during the stockpiling season for the past 2 years, both
Peters and Eastman testified that he drove a truck in that operation. As
Peters started to work in April , 1967, it is doubtful that he would have so
testified if Jensen was removed from that work before Peters was
employed Sydney Faulks also testified that Jensen drove a truck during
the off season I find that Jensen was one of the stockpiling drivers
In addition , during the summer of 1968 , Respondent employed four
students on summer vacation to work on the crew. All but one had worked
for Respondent for two or three summers . They are hired each summer as
needed , and Respondent does not expect them to become permanent
employees when they finish their schooling These employees drove trucks
in conjunction with the work,of the curb and gutter crew only on occasion.
Because of their status as students , they would not be included in any unit
found appropriate . Post Houses. Inc. 161 NLRB 1159, enfd 384 F.2d
463, (C.A. 3).
"According to Sydney Faulks, Helbach drove a truck on many
occasions , but Faulks did not elaborate
FAULKS BROTHERS CONSTRUCTION CO.
During periods of heavy ready-mix volume, Helbach
worked on occasion as a weigh batcher in the ready-mix
opetation. Helbach was paid $2.30 an hour.
Gene Johnson was described by Peters as assistant
foreman on the curb and gutter crew. However, there is
no evidence that he is a supervisor within the meaning of
the Act. During the construction season he performed a
variety of duties with the crew. Johnson drove a truck on
occasion for short periods in conjunction with his duties
and occasionally substituted for other drivers. During the
slack season, Johnson regularly drove a dump truck in the
stockpiling operation." Johnson was paid $2.30 an hour.
Ronald Moser usually worked on the curb and gutter
crew. According to Sydney Faulks he was available for
call by Schlafer when an extra driver was needed and no
one else was available. Although Peters identified Moser
as a regular stockpiling driver during the slack season. he
later testified that Moser drove once in a while and that
he could not say how often. He was not otherwise
identified as a regular stockpiling driver. Moser was paid
$2.30 an hour.
Three employees, Wayne Zabel, Elmer Miller, and
Daniel Buchholz, normally operated heavy equipment
during the construction season. All three occasionally
drove the low-boy or other trucks to move their
equipment, and Buchholz occasionally moved heavy
equipment for others to operate. During the slack season,
Zabel regularly drove a dump truck in the stockpiling
operation. The others did not. Zabel also occasionally
substituted for other drivers during the construction
season. Zabel was paid $2 or $2.10 an hour, Miller was
paid $2.25 an hour, and Buchholz was paid $2.50 an hour.
In addition, Respondent employed Clara Jensen, a
janitress , and Lewellyn Faulks. Lewellyn Faulks is a
brother of Sydney and Oliver. He worked as a mechanic
and dealt with special problems as they arose. He is
treated differently from other employees for pay purposes.
B. Conclusions
1. The appropriate unit
The General Counsel contends that a unit of
Respondent's truck drivers in which the Union sought
recognition is an appropriate unit and that at the time of
the Union's request it was composed of the eight
employees whose principal duties were driving
Respondent's large dump trucks and the ready-mix trucks.
Respondent contends that because of the nature of its
operations a unit of truckdrivers excluding all its other
employees is not appropriate and that even if a
truckdrivers unit is appropriate, it should be composed of
the three employees who drive dump trucks during the
stockpiling operation and Clarence Schuelke as well as the
other dump truck and ready-mix drivers. Respondent
would also exclude Richard Buck from the unit on the
ground that his assignment as a ready-mix driver was only
temporary. Counsel for the General Counsel and
Respondent filed able and helpful briefs on these and the
other issues in this case.
Respondent contends that in recent years the Board has
announced unit policies which point to a case by case
consideration of quasi-craft units and away from the
presumption of appropriateness that previously applied to
such units." Respondent contends that these policies
applied to the instant case warrant the conclusion that
"Peters so testified without contradiction.
329
Respondent's truckdrivers do not constitute a readily
identifiable and homogeneous group with different
interests from those of Respondent's other employees. The
General Counsel relies on the other hand on a separate
line of cases which he contends recognize and accomodate
special problems in the construction industry and establish
the appropriateness of the separate truckdrivers unit.15 The
General Counsel concedes that for purposes of the
construction industry exception to Section 8(e) of the Act
Respondent's ready-mix and materials supply operations
are not considered to be in the construction industry," but
contends that for unit purposes the Board has never drawn
a distinction between the materials supply and
construction industries."
While there is much that is persuasive in Respondent's
argument, I note that in setting forth its approach in the
cases relied upon by Respondent the Board stressed that
functional differences which form the basis of separate
truckdrivers units vary "greatly from industry to industry
and from employer to employer, depending to a large
extent upon particular business practices."' B In R. B.
Butler , Inc., 160 NLRB 1595, the Board found
appropriate a separate unit of construction laborers,
stating that "In the construction industry, collective
bargaining for groups of employees identified by function
as well as those groups identified by craft skills has
proven successful and has become an established
accommodation to the needs of the industry and of the
employees so engaged." The Board has established other
functional units in the construction industry finding them
to constitute readily identifiable and homogeneous groups
with a separate community of interests even where there
has been no clear separation of duties between the
employees in the unit and other employees and there has
been close functional relationship between the employees
in the unit and other employees." I conclude that the
cases relied upon by Respondent do not govern unit
determinations in the construction industry.S0
Here it is true that Respondent's ready-mix and
material supplies operations may not be considered for all
purposes as part of the construction industry. But the
considerations which may exclude them from the
construction industry exception to Section 8(e) of the Act
are not the same as those that relate to a unit
determination. Respondent's drivers deliver materials both
to outside customers and to Respondent's construction
sites. Its outside customers are themselves, at least to a
considerable extent, in the construction industry. A
principal basis advanced by Respondent for denying a
separate drivers unit is that their functions and duties are
"Citing Kalamazoo Paper Box Corporation , 136 NLRB 134;
Malllnckrodt , Chemical Works , 162 NLRB 387; E. H. Koester Bakery
Co., Inc., 136 NLRB 1006; and Ore-Ida Foods, Inc, 146 NLRB 464 See
also Sylvania Electric Products , Inc, 135 NLRB 768
"Citing , inter aha, R B Butler, Inc. 160 NLRB 1595, Roadhome
Construction Corp , 170 NLRB No . 91; Graver Construction Company,
118 NLRB 1050; Lewis & Bowman , Inc.. 109 NLRB 796
"Drivers , Salesmen , Warehousemen , etc, Local Union No. 695. et al,
152 NLRB 577, 581 , enfd 361 F 2d 547 (C.A.D.C ).
"Citing Graver Construction Company, supra, which the Board cited in
R. B. Butler, Inc., supra.
"Kalamazoo Paper Box Corporation, supra at 137. See also E. H.
Koester Bakery Co., Inc ., supra at 1010; Mallinckrodt Chemical Works,
supra at 397.
"Roadhome Construction Corp., 170 NLRB No. 91; Hydro
Constructors , Incorporated. 168 NLRB No 19; New Enterprise Stone &
Lime Company, Inc. 172 NLRB No. 240; W C Hargis & Son, Inc. 164
NLRB No. 153, Hychem Constructors . Inc, 169 NLRB No. 138.
"See Hydro Constructors, Incorporated , supra, fn. 2
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closely related to those of Respondent 's construction
employees and that there is substantial interchange
between the two groups . I conclude under these
circumstances that for unit purposes Respondent's
business is to be considered as in the construction industry
and that the line of cases relied upon by the General
Counsel applies.
It remains to be determined whether under these cases
there is a readily identifiable and homogeneous group of
drivers with a separate community of interests from
Respondent ' s other employees . I conclude that there is.
Despite their lack of chauffeurs ' licenses , the full
significance of which it is difficult to determine on the
record, I am persuaded from the facts set forth above that
Respondent employs eight employees whose principal
duties are to drive its six ready-mix trucks and its two
dump trucks. These employees work under the separate
supervision of Respondent ' s dispatcher . Although the pay
rate of Buck is not established and pay rates generally
may reflect length of service ," the pay of the drivers as a
group tends to be lower than that of Respondent's
employees who are predominantly engaged in other
activities during the construction season . The evidence
establishes that during the construction season all of these
employees are engaged predominantly in driving or closely
related loading , unloading , and truck servicing duties.='
During the slack season six of them drive dump trucks in
the stockpiling operation . One of the others continues to
make ready-mix deliveries a substantial portion of his
time, and the remaining employee has not yet worked for
Respondent during the slack season . I conclude that the
drivers are a readily identifiable and homogeneous group
of employees with sufficiently clear separate interests to
constitute a separate appropriate unit.
Ratzburg , Handrich , Peters , Penney, Voss , Eastman,
and Woodard clearly are within the appropriate unit. As
for Buck , it appears that until 5 weeks before the
picketing began he drove only on an occasionally basis
approximately 20 percent of the time. At that time he
took the place of a former employee whose principal
duties were driving a ready-mix truck . Respondent
contends that Buck 's assignment to ready-mix driving was
only temporary . The picketing and Buck's participation
in it makes it impossible to measure that contention
against events after the picketing began. However , there is
no evidence that Buck was ever told that his driving
assignment was temporary . Although his assignment to
driving occurred during the busy portion of the ready-mix
season , it was also during the season for the curb and
gutter crew when Buck was most likely to be needed
there . There is no evidence to indicate that the need for a
driver in the slot occupied by Buck was temporary or
likely to end before the ready-mix season tapered off and
there is no evidence that Respondent had taken any steps
to hire another employee to replace the driver who had
left so that Buck could be returned to his former duties.
In these circumstances , I conclude that Buck's assignment
conformed with the general policy described by Sydney
Faulks and was indefinite in duration , to last as long as he
was needed as a driver or until an overriding need might
dictate his reassignment . I conclude that Buck was in the
drivers unit when the picketing began.
"The record however does not contain sufficient evidence to support this
contention of Respondent.
"T a Beechnut Life Savers Co., Inc., 118 NLRB 123, 124; Maule
Industries , Inc., 117 NLRB 1710, 1713, 1714, DaUas Concrete Company,
102 NLRB 1292, enfd . 212 F.2d 98 (C.A. 5).
As set forth above, Jensen, Johnson, and Zabel drove
on a regular basis only during the stockpiling season. The
General Counsel, contrary to Respondent, contends that
they should be excluded from the unit. The General
Counsel contends that they do not share a sufficient
community of interest with Respondent ' s regular
truckdrivers to justify their inclusion in the unit because
their basic skills, functions , and supervision during the
construction season differ from those of the other drivers
and they devote less than a majority of their total working
time to truckdriving duties. Respondent contends that they
are dual function employees whose full time assignment to
driving duties for up to 5 months of the year gives them a
substantial community of interests with the other
truckdrivers.
In Berea Publishing Company, 140 NLRB 516, the
Board found appropriate a unit of composing room and
art production employees of a newspaper publisher. The
newspaper employed several regular part - time employees
in these departments who were included in the unit under
established standards. At issue was an additional
employee who regularly spent 40 percent of his time in
these departments and the remainder in other departments
of the employer. Noting that this employee would have
been included in the unit if his sole duties for the
employer were limited to the time he worked in the unit,
the Board overruled its decision in Denver- Colorado
Springs-Pueblo Motor Way, 129 NLRB 1184, and
reverted to the rule earlier established in Ocala Star
Banner , 97 NLRB 384, for determining the placement of
dual-function employees. It held: 97 NLRB 384, for
determining the placement of dual-function employees. It
held:
[W]e now believe that a dual-function employee
devoting less than 51 percent of his time to unit work
may have sufficient interest in the unit's conditions of
employment to be included in the unit . In this respect,
we can perceive no distinction between the part-time
employees, who may work for more than one employer,
and the employee who performs dual functions for the
same employer.
In this case the three employees under consideration
performed their driving functions on a seasonal basis
rather than on a regular part-time basis. However, under
the reasoning of Berea, if they would have been included
in the unit as seasonal employees assuming that they
performed no other duties for Respondent, then it would
appear that they should be included despite the fact that
their additional duties are performed for Respondent.
The stockpiling season lasted from 3 to 5 months of the
year. During that season although they retained their
higher rates of pay Jensen, Johnson, and Zabel drove
regularly and performed duties indistinguishable from
those of the other drivers under common supervision. If
they had worked for Respondent only during the
stockpiling season , they would be found to have a
sufficient community of interest with the other drivers to
warrant their inclusion in the drivers unit .'3 Despite the
fact that they work less than 51 percent of the time as
drivers, I conclude that these employees have substantial
community of interests with those of the other drivers.
Thus, apart from rates of pay, they have an obvious
interest in hours of work, shift schedules, work
assignments , and other conditions of employment of the
"Lane Drug Co.. 160 NLRB 1147, 1148 , enfd . as modified 391 F.2d
812. (C.A . 6), cert . denied 393 U.S. 837.
FAULKS BROTHERS CONSTRUCTION CO.
drivers during the slack season . Although their wages may
now be higher , they have an interest in any increases
which might reverse their position relative to the other
drivers as well as other benefits which might apply to the
drivers . Accordingly , under the principles set forth in
Berea , I conclude that Jensen, Johnson , and Zabel should
be included in the drivers unit."
The remaining employee at issue is Clarence Schuelke
who also appears to be a dual -function employee. As
noted above , the evidence as to the extent of Schuelke's
driving is less than clear . Buck testified at one point that
Schuelke was a general laborer who drove a truck 50
percent of the time. At another he testified that Schuelke
drove the truck about as much as others on his crew.
Although the General Counsel contends that it is obvious
from Buck 's testimony that the former estimate related to
an earlier period of Schuelke's employment , I do not find
Buck's testimony that clear. At best Buck indicated that
he was not familiar with Schuelke 's duties during the
summer of 1968, but I do not construe Buck 's testimony
as establishing that there was a change in Schuelke's
duties. Sydney Faulks testified that most of Schuelke's
time was spent in driving the 5-yard truck but a
reasonable amount of his time was also spent working
with Helbach in the installation of septic tanks and that
others also drive the 5-yard truck. According to Faulks,
Schuelke also occasionally drove a 10-yard truck hauling
materials and delivering orders . Schuelke ordinarily did
not drive in the stockpiling operation.
The 5-yard truck was used mainly to haul black top to
sites where the crew was working . For that purpose, it was
attached to the spreader. While the driver remained in the
truck , the crew operated the spreader . It was also used to
haul road gravel in preparation for black top jobs, to haul
construction tools to jobsites , and to haul materials to
customers . Faulks estimated that the truck was used in
conjunction with the curb and gutter crew about 50
percent of the time and that Schuelke normally drove it
when used by the construction crew.
The estimates of the allocation of Schuelke 's time are
not precise , but I find , considering Buck ' s and Faulk's
testimony together , that Schuelke was the driver who
normally drove the 5-yard truck when used in conjunction
with the curb and gutter crew, that Schuelke also drove
that truck and Respondent 's other dump trucks on
deliveries not related to the work of the construction crew,
and that his total driving duties took approximately half
of his working time . Under the rule set forth in Berea, it
need not be established that the duties of a dual function
employee which are common with other unit employees
predominate ." Schuelke 's driving duties if performed on a
regular part-time basis would warrant his inclusion in a
drivers unit . Accordingly , I conclude that Schuelke is
properly included in the unit with Respondent 's other
drivers.
Accordingly, I conclude that a unit of all truckdrivers,
excluding all other employees , guards, and supervisors as
defined in the Act, is appropriate for purposes of
collective bargaining, and that on August 6 , 1968, at the
time of the Union 's initial request for recognition, the
following employees were included in that unit.
Alvin Ratzburg
Marlyn Handrich
Norman Penney
William Peters
Godwin Voss
Gordon Woodard
Richard Buck
Gene Eastman
Carl Jensen
Gene Johnson
Wayne Zabel
Clarence Schuelke
331
2. The Union's majority and concluding findings
As set forth above, on the morning of August 6, 1968,
at the time Schlieve first requested recognition from
Respondent he had in his possession cards signed by the
six employees then assigned to ready-mix driving. Not
until August 15 at the earliest was there any effective
revocation of the card signed by Woodard, but no
additional cards were obtained by the Union. As I have
found that there were 12 employees in the unit of
truckdrivers, the Union had one less authorization than
needed to establish itself as the majority representative of
the employees in that unit. Therefore, the Union was not
the representative of the drivers unit within the meaning
of Section 9(a), and Respondent was not obligated to
bargain with the Union at the time of the Union's request
for recognition or thereafter.
As the only unfair labor practice alleged in the
complaint is that Respondent refused to bargain with the
Union in violation of Section 8(a)(5) of the Act, I
conclude that the violation has not been established and
that the strike which started on August 6 was neither at
its inception nor was it later converted to an unfair labor
practice strike. Accordingly, I shall recommend that the
Complaint be dismissed.
CONCLUSIONS OF LAW
1. Sydney Faulks and Oliver Faulks d/b/a Faulks
Brothers Construction Co. constitute an employer engaged
in commerce within the meaning of Section 2(2), (6) and
(7) of the Act.
2. General Drivers and Dairy Employees Union Local
No. 563, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has not engaged in any of the unfair
labor practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , I recommend that the Board issue an
order dismissing the complaint in its entirety.
"See W. C. Hargis & Son . Inc., 164 NLRB No. 153. in which Berea
was applied in determining the composition of a drivers unit in the
construction industry , albeit with a contrary result.
"Hydro Constructors. Incorporated . supra, establishes that Schuelke's
driving duties gave him interests in common with other drivers; it does not
hold that those duties must predominate for inclusion in a drivers unit. The
application of Berea Publishing , supra, was not discussed in that decision.
But see W. C. Hargis & Son . Inc.. supra.