McArdle & Casazza Trucking Co., Inc.

In the Matter of MCARDLE & CASAZZA TRUCKING Co., INC.,' EMPLOYER AND PETITIONER and BREWERY WORKERS LOCAL UNIONS No. 13 AND No. 15, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, CIO AND INTER- NATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSE- MEN AND HELPERS OF AMERICA, AFL, LOCAL 294, UNIONS Case No. 2-RD1-117.Decided October 26, 1949 O DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Jack Davis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed:' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board finds : 1. The business of the Employer : The Employer, a New York corporation, is licensed by the ICC as a common carrier of general freight. The Employer engages in hauling general freight and furniture to and from 13 States. The Employer receives approximately $100,000 annually from the furni- ture moving business, 50 percent of which is for out-of-State hauling, and $225,000 annually from the general trucking business, 60 percent of which relates to out-of-State pick-ups and deliveries. In January 1948 the Employer purchased and took over the business of J. J. by, Jr., Inc., who supplied all of the transport services for the Dobler Brewery Co., of Albany, New York. The Employer hauls Dobler beer to wholesale distributors, one of whom is located outside the State *On February 28, 1950, the parties hereto entered into a Stipulation providing for the designation of the Employer to read "Brewery Transport Inc." in place and stead of the name "MeArdle & Casazza Trucking Co., Inc." in this proceeding. ' The hearing officer's rejection of proof relating to the scope of authority of the Joint Grievance Board and factors motivating its resolution of the present conflict was proper. The determination made by that Board is irrelevant In this proceeding. See National Labor Relations Board v. Hearst Publications, 322 U. S. 111, 134. 86 N. L. R. B., No. 106. 903 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of New York, and delivers hop, malt, grits, cases and kegs, originating outside the State, to the brewing company. From this separate oper- ation, the Employer annually receives approximately $60,000. The Employer admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. 2. Brewery Workers Local Unions No. 13 and No. 15, International Union. of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, herein called the Brewery Workers, are labor organizations which claim to represent the employees engaged in the Employer's brewery transport operation. International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL, Local 294, herein called Teamsters, is a labor organization claiming to represent all of the Employer's drivers, helpers, and similar employees, including those engaged in the Employer's brewery transport operation. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the amended Act, for the follow- ing reasons: For some years the Employer has been a member of Highway Transp Association of Upper New York State, Inc., herein called the Association. The Employer has individually signed the con- tracts which the Association has negotiated for its members with the Teamsters. As noted above, the Employer took over the Hoy brewery transport business in January 1948. At that time it signed a contract which Hoy had with the Brewery Workers, covering the drivers engaged in the transportation of brewery products for Dobler. That contract which had been negotiated on behalf of the Dobler Brewing Company and other members by the Hudson Valley Brewers' Association was to expire on May 1, 1949. In August 1948, the Teamsters negotiated their present contract,. dated August 1, 1948, and expiring August 1, 1950. It is designated as It "General Freight Contract" and contains no specific reference to the- Employer's brewery transport employees. In November 1948, the- Teamsters won a UA election held pursuant to a consent agreement covering "all drivers, helpers, checkers, platform men; and warehouse- men of firms which are members of the Highway Transport Associa- tion of Upstate New York, Inc." 2 However, the Brewery Workers. were neither notified nor made a party to that proceeding, and the Employer, without objection from the Teamsters, omitted the names. of the brewery transport workers from the eligibility list. 2 2-UA-4622. McARDLE & CASAZZA TRUCKING CO., INC. 905 After the UA election, about December 1948, and again in March 1949, the Teamsters presented the Employer with a claim of represen- tation for the brewery transport employees. The Employer rejected the demand, stating that the employees in question were not covered by the Teamsters' contract or by the UA vote, but were covered by a con- tract with the Brewery Workers. On May 1, 1949, the Employer renewed its contract with the Brewery Workers .3 After an unsuccess- ful attempt by the Teamsters to have the controversy resolved through the Association, the Employer filed the present petition, and the Teamsters called a strike which is still pending. The Teamsters contend that their current contract is a bar to this proceeding. We disagree. We find no evidence that the parties intended the latest Teamsters' contract to cover any employees othei than those covered in earlier contracts, i. e. the Employer's general transport drivers. The contract contained no specific provision making it cover all operations of the Employer; there is nothing in the record to indicate that either the earlier or the current contract had ever been applied by the Employer or the Teamsters to the brewery drivers. Indeed the failure of the Employer and the Teamsters to include these drivers in the UA election militates strongly against such a conclusion. In these circumstances we shall not regard the Teamsters contract as a bar to the instant petition., The Brewery Workers do not contend that their own contract is a bar. 4. The appropriate unit : The Employer and the Brewery Workers contend that the employees engaged in the Company's brewery transport operation constitute a separate unit appropriate for collective bargaining. The Teamsters contend that all drivers, helpers, checkers, platform men, and ware- housemen, including those engaged in the brewery operation, consti- tute the appropriate unit. The brewery drivers and helpers constitute a separate operational unit of the Employer's business. They are separately supervised by a dispatcher at the Employer's Park Avenue terminal where they report for loading and delivery orders relayed from the Dobler Brewery Co., and keep the trucks which carry the Dobler name and the State license required for liquor carriers. These drivers operate principally from the Dobler Brewery Co., where they have lockers. 8 The Employer has never joined the Hudson Valley Brewers ' Association nor authorized that association to bargain with respect to its brewery drivers. It has adopted the association contract acting as an individual employer. * See Matter of Dohrmann Hotel Supply Company (Manufacturing Division), 71 N. L. It. B. 699, 700; Matter of Victor Electric Products, Inc., 79 N. L. It . B. 373; Matter of Scanlon- Morris Division of The Ohio Chemical & Mfg . Co., 71 N. L. R. B. 903, 905. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The other drivers of the Employer are supervised by a dispatcher at the Employer's Gansvoort Street Garage, several miles from the other location, and drive trucks bearing the McArdle and Casazza, Inc., name. There is no interchange of trucks or drivers between the two operations. The two groups of drivers have different work shifts, workweeks, rates of pay, vacation and holiday benefits, and appear in separate seniority lists. On the other hand, all of the drivers have the same type of work and share garage servicing and storage facilities. Moreover, the Employer indicated at the hearing that it would accept any beverage transport work it could obtain, using any available driver or truck. Under these circumstances, the drivers and helpers engaged in the Employer's brewery transport operation may constitute a separate unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 8 or they may be included in a unit with the other drivers.6 However, we shall make no final unit determination at this time, but shall be guided in part by the desires of the brewery drivers and helpers as expressed in the election herein- after directed. If a majority of these employees vote for the Brewery Workers, they will be taken to have indicated their desire to constitute a separate unit. If a majority vote for the Teamsters they will be taken to have indicated a desire to constitute part of the existing unit of other drivers represented by the Teamsters. DIRECTION OF ELECTION' As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 150 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees. in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- ° See Matter of Wayne Hale, 61 N. L. R. B. 1305; Matter of Merchants Delivery, Inc., 72 N. L. R. B. 28. ° See Matter of Taxicabs of Cincinnati, Inc. (Ferguson Division ), 82 N. L. R. B. 664; afatter of York Motor Express Co., 82 N. L. R. B. 801. 7 Any participant in this proceeding may, upon its prompt request to, and approval thereof by the Regional Director, have its name removed from the ballot. McARDLE & CASAZZA TRUCKING CO., INC. 907 stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to. be represented, for purposes of collective bargaining, by Brewery Workers Local Unions Nos. 13 and No. 15, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO." s The Teamsters contend that both Brewery Workers locals should not be included, as membership , if any, is restricted to one of them. Inasmuch as Local No . 13 and Local No. 15 have been representing the employees in an appropriate unit on a joint basis they will be placed oh the ballot jointly , Matter of Sterling Pulp and Paper Company, 77 N. L. R. B. 63, 69. If they are selected , they will be jointly certified and the Employer may require both to bargain jointly as representatives of the employees. [By Order dated March 7, 1950, the Board granted International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , AFL, Local 294, per- mission to withdraw its name from the ballot.]