R. Eddie Wayland, TCA Legal Counsel
(PHOTO: SHUTTERSTOCK)
The Union in this case sought to represent a unit of drivers at one of the carrier’s facilities. Under the Union’s petition with the National Labor Relations Board (NLRB), only drivers would be represented. The carrier argued that the unit should be a “wall-to-wall” unit of all of its non-supervisory employees, or, alternatively, a unit of all full-time and regular part-time drivers and dockworkers.
Background
The carrier hauls shipments nationwide. Previously, at this particular facility, none of the employees were unionized. However, a local Union stepped in seeking to represent a unit of drivers through an NLRB election. The carrier challenged this proposed bargaining unit of only drivers, arguing that the unit should be a wall-to-wall unit of all of its non-supervisory employees, or, alternatively, a unit of all full-time and regular part-time drivers and dockworkers.
Regional Director’s Decision
A hearing was held, and the NLRB Regional Director issued a written decision in the Union’s favor.
In making her decision, the Regional Director looked at the community of interest surrounding the employees in question, considering the following factors: employment conditions, skills, and training; duties and functions; work related contact; common supervision; and functional integration and interchange. In so doing, the Regional Direction conducted a case-specific factual inquiry focusing primarily on the testimony of the drivers and dockworkers that perform the work in question and their day to day functions.
Subsequently, the Regional Director broke down the individual functions of each employee category, based on employee testimony. The Regional Director found that dockworkers only load the trailers for the drivers, however occasionally drivers would help the dockworkers load the trucks. The “combo drivers,” as part of the Employer’s “dock-to-driver” program, would load trailers but also would perform driving duties with the ultimate goal of becoming a full-time driver. Pickup and delivery drivers transported freight to and from customers in the facility’s area. The Regional Director noted conflicting testimony in which one driver stated that he frequently helped load trailers and saw other drivers helping on their trailers as well, while another driver stated that he rarely loaded trailers, instead checking to make sure that the load was secure and only helping to rearrange the load if necessary. Lastly, line haul drivers, who complete long distance deliveries, would usually find their trailer loaded by the time they arrived but would help to load the trailer in the off chance that it was not completed by the time they arrived.
The Regional Director concluded that “the similarities between dockworkers and drivers do not outweigh their important differences.” The Regional Director determined that the overlap between the dockworkers and drivers was merely incidental to overall job functions and the overlap was outweighed by the significant distinctions between the two categories. “[D]rivers spend the overwhelming amount of their time away from the terminal and have greater autonomy, [] there are differences in skills and compensation between the two groups, and [] drivers are subjected to more stringent job requirements including complying with DOT regulations and passing regular medical examinations.” Lastly, the Regional Director noted that the Employer contended that the dockworkers should be included as dual-function employees in the petitioned-for-unit. The Regional Director conceded that the combo-drivers should be included in the unit because they work as both dockworkers and drivers. However, the Regional Director refused to accept the Employer’s argument that the other dockworkers should be included as they spend all their time performing their individual duties and do not drive any tractors off of the yard.
Therefore, the Regional Director concluded that the petitioned-for-unit consisting of the combo-drivers, pickup and delivery drivers, and line haul drivers was appropriate, and that the dockworkers would not be included.
Takeaway
Most employers strongly believe that Union representation of their employees is not in the best interests of the employees or of the Company. With such representation, the Union becomes the legal representative of the employees in the bargaining unit represented by the Union. The Union becomes the employee’s representative in dealing with the employer regarding wages, hours, working conditions and other terms and conditions of employment. Such representation often creates an adversarial relationship and limits direct communication between the Company and its represented employees with respect to work related topics and issues.
As this case demonstrates, the Union will often attempt to target and carve out distinct groups of employees to increase their chances of successfully organizing the employees. Vigilance in being proactive in avoiding Union activity by engaging in positive employee relations and reviewing operations with experienced legal counsel to audit operations and areas of potential vulnerability can help companies minimize the likelihood of successful Union organizing efforts.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.