Marks Oxygen Co. of Alabama

National Labor Relations Board - Board Decisions

Jun 2, 1964

147 N.L.R.B. 228 (N.L.R.B. 1964)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, we must reject as a ground for clarifying the Car-
penters' unit its assertion that the composite crew has historically been
included within the unit represented by the Carpenters.
Furthermore, it is apparent from the facts recited above that craft
lines have not been maintained within the composite crew, and all the
members of that crew regularly perform the same functions and ex-
ercise the same skills. Accordingly, we cannot conclude that the em-
ployees in this crew exercise the craft skills of, and for that reason
belong in a single unit with, journeymen carpenters represented by
the Carpenters Union.' Nor, in view of the similar functions , and
skills of all the crew employees, can we find that the maintenance
roofers which the Roofers has sought to represent constitute an ap-
propriate, identifiable unit .8
In view of the above, and as no union has asserted a claim to repre-
sent the employees in any appropriate unit, we shall dismiss the Car-
penters' motion for clarification and the Employer's petition for an
election.
[The Board dismissed the motion for clarification and the petition
for an election.]
° See, e .g., ACF Industries, Incorporated, 136 NLRB 594, 597-598; Blata-Knox Com-
pany, 135 NLRB 862, 864.
8 See, e . g., International Minerals & Chemical Corporation ( Potash Division ), 113 NLRB
53, 56. Cf. Shell Oil Company , 116 NLRB 203.
The seasonal influx of temporary employees to perform maintenance roofing work does
not require a different conclusion.
Marks Oxygen Company of Alabama and United Steelworkers
of America, AFL-CIO, Petitioner . Case No. 10-11C-5778. June
2, 1964
DECISION ON REVIEW
On February 17, 1964, the Regional Director for the Tenth Region
issued an amended Decision and Direction of Election in the above-
entitled proceeding.' Thereafter, the Employer, in accordance with
Section 102.67 of the Board's Rules and Regulations, Series 8, as
amended, filed a timely request for review of the Regional Director's
amended Decision and Direction of Election on the ground, inter alia,
that the Regional Director had erroneously included truckdrivers in
the production and maintenance unit found appropriate herein. The
Petitioner filed a timely statement in opposition to the Employer's re-
' In his original Decision and Direction of Election, issued January 24, 1964, the Re-
gional Director' had excluded truckdrivers from the appropriate unit. Thereafter, upon
motion of the Petitioner which sought their inclusion , the Regional Director reconsidered
his original decision and concluded that the truckdrivers should be included.
147 NLRB No. 31.
MARKS OXYGEN COMPANY OF ALABAMA 229
quest for review. The Board, by telegraphic order dated March 9,
1964, granted the request for review only insofar as it related, to the
issue concerning the unit determination, and stayed the election .2
The Board has considered the entire record in this case with respect
to the Regional Director's determination under review, and hereby
affirms the Regional Director's decision to include the truckdrivers in
the unit heretofore found appropriate.
The Employer is engaged in the manufacture, sale, and distribution
of oxygen, nitrogen, and argon gases at its Decatur, Alabama, plant.
The record shows that the nine truckdrivers, whose unit placement is
the sole matter of disagreement between the parties, transport the
Employer's product to both local and distant points. They are paid on
a trip basis, whereas the other employees in the production and main-
tenance unit are paid on an hourly rate.3 Aside from picking up
delivery bills and routings from the plant office and loading trucks, the
drivers perform no other duties at the plant. Loading takes an es-
timated 30 to 45 minutes for each trip. When making local deliveries,
the drivers may load more than once each day-perhaps two or three
times. The fill room operator and helper assist in loading the two
cylinder trucks. The six liquid trucks apparently are loaded by the
truckdrivers, without assistance. The truckdrivers are under sep-
arate supervision from the plant employees, and there is no inter-
change between the two groups. There is no history of collective bar-
gaining at the plant; the Petitioner seeks a plant vide unit, including
the drivers; and no union seeks to represent the drivers separately.
The Employer contends that the Board's decision in the Koester
case 4 compels a finding, on. the above facts, that the truckdrivers do
not have a sufficient community of interest with the plant employees
to warrant their inclusion in the production and maintenance unit.
We do not agree.' Prior to the Koester decision, the Board for a pe-
riod of time followed a policy of requiring the inclusion of truck-
-drivers in production and maintenance units unless the partir s agreed
to exclude them, or unless another labor organization sought to rep-
resent them separately.6 In the Koester case, supra, the Board reversed
2 Procedural issues raised by the Employer in its request for review were rejected as
lacking in merit and are not considered in this Decision on Review.
In addition to the truckdrivers, the unit is composed of four operators and four assist-
ant operators ( working four shifts ), one fill room operator, one helper, one janitor, and
one maintenance mechanic (working only a day shift).
4 E. H. Koester Bakery Co., Inc., 136 NLRB 1006. Member Leedom dissented in the
cited case and has considered himself bound by that decision . See, for example, Tops
Chemical Company, 137 NLRB 736. However, he would reach the result herein on the
basis of the dissent in the cited case. He therefore finds it unnecessary to adopt the
rationale hereinafter set forth.
5 The other Board decisions cited by the Employer are inapposite.
6 The Valley of Virginia Cooperative Milk Producers Association , 127 NLRB 785
Thomas Electronics, Inc., 107 NLRB 614.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the policy of requiring the inclusion of truckdrivers where there was
disagreement. However, it did not reverse the finding, stated in
Valley o f Virginia, concerning a community of interest between truck-
drivers and production and maintenance employees in relation to the
flow of materials and products into and out of the plant. Nor did the
Board reverse such basic policies as (a) a plantwide unit is presump-
tively appropriate; (b) a petitioner's desires as to the unit is always a
relevant consideration; and (c) it is not essential that a unit be the
most appropriate unit. The elimination of the policy of requiring the
inclusion of truckdrivers brought the Board's policy with respect to
such employees into harmony with its long-standing and oft-stated
policy of not compelling a labor organization to seek representation
in the most comprehensive grouping. Where, as here, a labor organi-
zation is willing, and seeks, to represent them in a plantwide unit, we
agree with the Regional Director that even though they may be away
from the plant most oral]. of the time and do little or no work in the
plant, truckdrivers have sufficient community of interest with produc-
tion and maintenance employees to warrant including them in such a
unit.
Accordingly, the case is hereby remanded to the Regional Director
for the purpose of holding an election pursuant to his Decision and
Direction of Election, except that the payroll period for determining
eligibility shall be that immediately preceding the date above.
Milk Drivers and Dairy Employees , Local Union No. 537 and
Sealtest Foods , a Division of National Dairy Products Cor-
poration and Associated Milk Dealers of Denver , Incorporated.
Case No. 27-CE-1. June 3, 1964
DECISION AND ORDER
On November 26, 1963, Trial Examiner James R. Hemingway issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
'Respondent 's motion for oral argument is denied because, in our opinion , the record,
exceptions , and brief adequately set forth the issues and positions of the parties.
147 NLRB No. 35.