Tac/Temps

National Labor Relations Board - Board Decisions

Sep 15, 1994

314 N.L.R.B. 1142 (N.L.R.B. 1994)

1142
314 NLRB No. 182
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Petitioner currently represents Coca-Cola sales representa-
tives, delivery/merchandisers, consumer route drivers, warehouse em-
ployees, forklift operators, and other production and maintenance
employees at Coca-Cola’s three facilities located in the Philadelphia,
Pennsylvania area.
2 Prior to that time, Coca-Cola only used checkers in the afternoon
to review, certify, and return products. Since about 1986, the Em-
ployer has hired checkers from Tac/Temps, a joint employer of the
current checkers.
3 The Norand acts as an inventory checking system which reflects
all the products that are to be loaded for delivery. It also contains
pertinent sales information such as customers’ account numbers, ad-
dresses, phone numbers, and the total number of cases for delivery
to each customer.
4 At the Folcroft facility, the checkout duties of the checkers are
the same except the product is checked only in the mornings, while
the drivers are present. The truck leaves the facility once the count
is completed. There is no final checker station at Folcroft.
Tac/Temps and the Philadelphia Coca-Cola Bottling
Company, Joint Employers, and Teamsters
Local 830, a/w International Brotherhood of
Teamsters, AFL–CIO, Petitioner. Case 4–RC–
18211
September 15, 1994
DECISION GRANTING REVIEW, ORDER,
AND DIRECTION OF ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On October 20, 1993, the Regional Director for Re-
gion 4 issued his Decision and Order in this pro-
ceeding in which he found inappropriate the Peti-
tioner’s requested unit of full-time and part-time
checkers at Coca-Cola’s Gould, Unity, and Folcroft fa-
cilities and dismissed the instant petition. The Regional
Director dismissed the petition on the ground that the
checker employees are guards within the meaning of
Section 9(b)(3) of the Act.1 The Petitioner filed a time-
ly request for review of the dismissal and the Em-
ployer filed an opposition to the Petitioner’s request.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has duly considered this matter and has
decided to grant the request for review as it raises sub-
stantial issues warranting review. Having carefully
considered the entire record in this matter, we find,
contrary to the Regional Director, that the petitioned-
for checkers are not statutory guards for the reasons set
forth below.
Coca-Cola distributes soft drinks, juices, and water
products to small and major grocery stores, conven-
ience stores and gas stations from its three facilities.
In 1990, Coca-Cola discovered that a substantial
amount of its product was being stolen in its delivery
process. In 1991, based on a consultant’s recommenda-
tion, Coca-Cola changed its use of checkers and the
checking procedure, and hired additional checkers from
Tac/Temps.2
The checkers’ duties consist of certifying that the
correct amount of a product is on a route truck or trac-
tor trailer before and after deliveries. At the Gould fa-
cility, which handles smaller deliveries, the route
trucks are checked twice. Beginning at midnight, the
checkers count the product on each truck, record the
count on a checkout sheet, compare the observed count
with the numbers on the ‘‘Load Request Forms,’’ note
and report any discrepancies to the plant super-
intendent, and sign the checkout sheet. When the
delivery/merchandisers arrive at about 6 a.m., they also
physically count the product and compare findings
with a load sheet generated by a Norand computer.3 If
there are discrepancies, the delivery/merchandisers
consult with the checkers, who may adjust the product
count. Once the count is reconciled, the checkers at the
checker station review the checkout sheet and the load
request form for accuracy, and activate the
delivery/merchandisers’ Norands by entering a security
code. The security code is changed daily and is known
not only by the checkers, but also the office manager
and the reconciliation clerk.4 The delivery/merchandi-
sers cannot begin their routes until the Norand is acti-
vated.
When the delivery/merchandisers return from com-
pleting their daily routes, the checkers at the Gould
and the Folcroft facilities physically count and record
products returned, empty trays and damaged products,
and then print out ‘‘Ending Load’’ documents. If the
product count agrees, then the checkers enter the secu-
rity code into the Norand. The delivery/merchandisers
cannot leave the facilities until the checkers enter the
code. The checkers report discrepancies to the route
manager on duty. Any discipline is handled by man-
agement.
At the Unity facility, which handles bulk deliveries
to chain grocery stores and other large companies, the
checkers certify that the orders are ready to be loaded
onto trailers once the orders are checked against the
load request forms. After the products are loaded, the
checkers re-count the orders for accuracy. During the
checkin procedure, the checkers count the product, log
any damaged product, and verify that the totals match.
Any discrepancies in the checkout or checkin proce-
dures are reported to management by the checkers.
When seeking checkers, Coca-Cola has placed ad-
vertisements in the newspaper under the clerical classi-
fication. One of these advertisements stated that it
sought ‘‘punctual, reliable individuals . . . [with] good
math aptitude to accurately count product on our
trucks, and ability to work outside throughout the year,
climbing on trucks to do correct counts.’’
Coca-Cola also utilizes uniformed security guards
who primarily man the guard station. These guards are
1143TAC/TEMPS
5 The Broadway, 215 NLRB 46 (1974), cited by the Regional Di-
rector, is distinguishable. In that case the duties of the fitting room
checkers included enforcing a specific rule to protect the employer’s
property (four garments to a fitting room) and reporting suspicious
activity. The checkers in the instant case merely count the product
and report discrepancies which may occur for any number of rea-
sons. They do not directly enforce any rules concerning theft.
6 In finding the checkers to be guards the Regional Director relied
on the fact that they were hired with the specific purpose of meeting
Coca-Cola’s security needs. We note, however, that Coca-Cola did
not advertise for guards or individuals with security experience.
Rather, the evidence shows that Coca-Cola’s advertisement for
checkers was placed in the clerical classification of the newspaper,
and that it sought individuals who were reliable, punctual, and pos-
sessed good math aptitude.
responsible for the security of the physical building,
and they arm and disarm the alarm systems. They log
in who comes and goes and inspect all vehicles upon
exit. At the Gould building, a checker relieves the
guard for brief breaks during the day and at 5:30 p.m.
so that the guard can secure the lobby doors and set
the alarms. At that time the checker performs the
guard’s checkout functions and monitors surveillance
cameras. The guards have keys to the facility, but the
checkers do not.
In finding the checkers to be guards, the Regional
Director noted that they were hired for the express pur-
pose of ensuring that no unaccounted product leaves
Coca-Cola’s premises, and they are responsible for
monitoring the shipment of Coca-Cola’s products to
discover and prevent the theft of the products by other
employees. The Regional Director found these duties
not to be incidental to normal clerical functions be-
cause certain employees were discharged after checkers
reported to management that employees stole products,
placed extra cases of products on trucks, and offered
checkers money to overstate the number of cases re-
turned. Further, the Regional Director also noted that
although the checkers do not carry weapons or directly
work with the uniformed security guards, the checkers
substitute for the guards when the guards take brief
breaks and when they secure the buildings. The Re-
gional Director concluded that the checkers protect the
Employer’s property and accordingly are guards as de-
fined in the Act.
In its request for review, the Petitioner contends that
the checkers’ primary duty is primarily clerical in na-
ture and that they only ensure that the trucks have
proper loads so that customers can be served effi-
ciently and effectively. The Petitioner also contends
that the checkers do not enforce rules to protect Coca-
Cola’s property because they do not perform tradi-
tional security or police-type functions as do the secu-
rity guards. The Petitioner asserts that the checkers do
not patrol Coca-Cola’s premises or make rounds, pos-
sess keys to the facility, or set or disarm security de-
vices. The checkers also are not charged with pro-
tecting the safety of other employees.
Contrary to the Regional Director, we agree with the
Petitioner that the checkers are not guards as defined
by Section 9(b)(3) of the Act. Although the checkers
have guard-like functions, we find that the protection
of Coca-Cola’s property is incidental to the checkers’
primary clerical function of certifying that the correct
product amount is on the outgoing and incoming deliv-
ery trucks.
Section 9(b)(3) of the Act defines a guard as ‘‘any
individual employed as a guard to enforce against em-
ployees and other persons rules to protect property of
the employer or to protect the safety of persons on the
employer’s premises. . . .’’ See J. C. Penney Co., 312
NLRB 32 (1993). Although Section 9(b)(3) of the Act
defines a guard as an individual employed to protect
the employer’s property and enforce its rules against
employees, the Board has held that certain checkers
were not statutory guards because they performed du-
ties ‘‘ordinarily associated with a clerical checking
function and protect[ed] the Employer’s property sole-
ly as an incident to such duties; and that any duties the
checkers have to report untoward occurrences are
shared by all of the Employer’s employees.’’ Pepsi-
Cola Bottling Co. of Cincinnati, 189 NLRB 105 fn. 1
(1971). Similarly, we find that the duties of the check-
ers in the instant case are also ordinarily associated
with clerical functions and that their duty to protect
Coca-Cola’s property is incidental to their primary du-
ties. Lion Country Safari, 246 NLRB 156 (1979).
There is no evidence that the checkers are respon-
sible for the security of Coca-Cola’s products. Rather,
the evidence shows that the checkers are charged
merely with indicating to management that there is a
discrepancy in the product count. It is management,
and not the checkers, that then determines whether a
theft has occurred and whether it warrants disciplinary
action. The checkers in the instant case do not enforce
specific rules concerning theft or investigate thefts;
they merely report discrepancies.5 A mere reporting
function does not compel a finding of guard status. See
Lion Country Safari, supra.6
The record shows that in addition to the checkers,
the delivery/merchandisers also physically count and
verify Coca-Cola’s products for accuracy and, presum-
ably, in part to prevent theft. The Board has held that
it will not exclude from nonguard status employees
whose duty to protect an employer’s property is shared
by all employees and is incidental to their nonguard
status. Lion Country Safari, supra; Pepsi-Cola Bottling
Co. of Cincinnati, supra.
Additionally, the fact that some checkers occasion-
ally substitute for the guards while the guards take a
break or secure the building does not compel a finding
that the checkers are statutory guards or show that they
would have divided loyalties at times of labor unrest.
This sporadic substitution is not a substantial part of
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Cf. Raymond Metal Products Co., 223 NLRB 127 (1976), relied
on by the Regional Director, in which storeroom clerks who spent
at least 25 percent of their working time substituting for guards were
found to be guards.
the checkers’ duties, but is incidental to their clerical
checking functions of counting and verifying prod-
ucts.7
In Lion Country Safari, 225 NLRB 969, 970 (1976),
the Board stated that ‘‘the separation of guards and
other employees for the purpose of union representa-
tion was intended to avoid conflicting loyalties, and to
insure an employer that he would have a core of plant
protection employees, during a period of industrial un-
rest and strikes.’’ Here, the duties of the checkers are
to count the product and verify that the correct amount
of the product is on the trucks. ‘‘These are not the cir-
cumstances in which Congress felt conflicting loyalties
might exist.’’ Id.
For the foregoing reasons, we find that the checkers
are not guards within the meaning of Section 9(b)(3)
of the Act and therefore the Petitioner is not precluded
from representing them. Accordingly, we shall rein-
state the petition and direct an election in the following
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full and part-time checkers employed by
Tac/Temps and assigned to The Philadelphia
Coca-Cola Bottling Company at 725 E. Erie Ave.
and 1520 Chester Pike, 19032, Folcroft, PA
[Gould, Folcroft, and Unity facilities]; excluding
all other employees including office/clerical,
guards and supervisors as defined in the Act.
ORDER
The petition is reinstated and the case is remanded
to the Regional Director for the purpose of conducting
an election in the petitioned-for unit.
[Direction of Election omitted from publication.]