NLRB v. SUNNYLAND REFINING COMPANY

• Decision Date: 01 March 1973
• Docket Number: No. 72-2919. Summary Calendar.,72-2919. Summary Calendar.
• Citation: 474 F.2d 407
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUNNYLAND REFINING COMPANY, a Wholly Owned Subsidiary of Kane-Miller Corporation, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

474 F.2d 407 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUNNYLAND REFINING COMPANY, a Wholly Owned Subsidiary of Kane-Miller Corporation, Respondent.

No. 72-2919. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

March 1, 1973.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Walter C. Phillips, Director, Region 10, N. L. R. B., Atlanta, Ga., for petitioner.

Joseph P. Carey, Industrial Relations, Kane-Miller Corp., New York City, for respondent.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

The NLRB seeks enforcement of its order that the respondent, Sunnyland Refining Co., cease and desist from violating sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and by refusing to bargain with the certified representative of its employees. The company's sole contention is that the board incorrectly determined the appropriate unit. The case turns on the correctness of the Board's excluding certain dual function employees from the unit. See Berea Publishing Co., 1963, 140 N.L.R.B. 516. We grant enforcement.

I.

Sunnyland Refining Co., a wholly owned subsidiary of Kane-Miller Corp., maintains a plant at Birmingham, Alabama, where it is engaged in the manufacture, sale, and distribution of oleomargarine and related products. On October 20, 1971, the Teamster Local Union 612 filed a representation petition with the board requesting certification as the bargaining representative of a unit consisting of the company's truckdrivers, mechanics, and tiremen employed at the Birmingham plant. The proposed unit included 34 shipper-drivers, a truck mechanic, his helper, and a tireman, all of whom work in the plant's transportation department. The record indicates that the shipper-drivers spend an average of four days and nights per week on the road and make almost exclusively interstate deliveries. All shipper-drivers are ICC qualified and carry ICC log books. When they are not driving, most perform plant work incidental to their driving duties, such as loading and unloading trucks and labeling margarine. In general, however, the shipper-drivers have almost no time available for plant work. All are paid on a weekly salary basis.

The company contended that the unit should include 20 plant employees who both drive trucks and perform production and maintenance work unrelated to their driving duties. These "dual function" plant employees deliver about 15% of the company's product, compared with the 60% delivered by the shipper-drivers and the 15% picked up by customers. Most of their deliveries are intrastate, and each dual function plant employee spends almost one day a week driving. The remaining time is spent in production and maintenance work. All dual function plant employees work a 40 hour week from 7:00 a. m. to 4:00 p. m. Fourteen of the dual function plant employees who drive are paid on an hourly basis; six are on salary. Only one of the dual function employees is on the same pay scale as the shipper-drivers.

On December 14, 1971, the board's acting regional director, after a hearing, approved the union's proposed unit. The director found that the shipper-drivers operate primarily interstate, while the dual function plant employees operate almost exclusively intrastate. Furthermore, the shipper-drivers spend almost all of their time away from the plant, while the dual function plant employees work primarily in the plant. The shipper-drivers and the dual function employees have separate supervision, are paid differently, and use different lounge facilities. The director concluded that the unit should consist of: "All shipper drivers at the Company's Birmingham, Alabama plant including the mechanic, the mechanic's helper and the tireman, but excluding all other employees. . . ." The board later upheld the director's decision and ordered an election among the members of the unit. On January 10, 1972, an election was held in which a majority of the employees voted in favor of the union, and on January 18, the board certified the union as the collective bargaining agent for the unit. The company refused to bargain with the union.

II.

The company contends that the board departed from its prior decisions by refusing to include the 20 dual function plant employees in the unit because they spend less than 50% of their time performing work similar to the shipper-drivers'. The company points to the acting regional director's statement in issuing his decision: "The fact that the twenty dual-function employees do some driving is insufficient to rebut the presumptive appropriateness of the unit sought by the Petitioner where, as here, they devote less than 50% of their time performing driving duties." The company argues that this holding is inconsistent with Berea Publishing Co., 1963, ...