Chicago Bridge & Iron Co.

In the Matter Of CHICAGO BRIDGE & IRON COMPANY, EMPLOYER and TRUCK DRIVERS & CHAUFFEURS UNION, LOCAL 478, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, AFL Case No. 2-RC-1411.-Decided January 31, 1950 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Lloyd S. Greenidge, 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 National Labor Relations Act the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner, Truck Drivers & Chauffeurs Union, Local 478, affiliated with the A. F. of L., and the Intervenor, Independent Erec- tion Equipment Maintenance Union, are labor organizations claiming to represent certain employees of the Employer. 3. The question concerning representation : The Employer contends that its contract with the Intervenor is a bar to this proceeding. . On January 3, 1949, the Petitioner notified Assistant Manager Stoffer, of the Employer's Hillside, New Jersey, plant,' that it repre- sented a majority of its Hillside drivers and helpers. At the same time, it forwarded a copy of a proposed contract to Clarke, manager of the erection department, at the Chicago main office. On January 26, a conference was held between representatives of the Employer and the Petitioner, at which the Petitioner submitted 12 membership cards to the Employer as well as a proposed contract.2 The proposed The proceedings , herein, concern only the Hillside , New Jersey, plant. These included all but one of the drivers and helpers employed at Hillside. 88 NLRB No. 75. 402 CHICAGO BRIDGE & IRON COMPANY 403 contract was rejected on the ground that it did not suit the Employer's particular business ; nevertheless many of its substantive provisions, including wages, over the road expenses, and others,. were discussed. Meetings between the parties continued in February and March. Meanwhile between January 7 and 15, the Employer was notified of the claim of the Intervenor that it represented the majority of all the employees in the shop, including the drivers. Negotiations be- tween the Employer and Intervenor took place between February 10 and 15, and on March 23, the Employer signed a contract with Intervenor.3 Eight days later, on March 31, Clarke stopped at.Hillside on his way to Europe, and another conference took place attended by Clarke, Guerin, manager of the Hillside plant, and Aimon, organizer for Petitioner, at which practically all the important provisions of the proposed contract were discussed. At this meeting, Clarke advised Aimon, for the first time, that the Employer had signed a contract with the Intervenor, and gave Aimon a copy of the agreement. Clarke suggested that further meetings be postponed until his return from Europe and that in the meantime Aimon prepare a condensed form of the proposed contract. Such contract was submitted to Guerin on April 20.4 On June 14, Aimon and most of the drivers met with Guerin con- cerning the signing of the contract. According to Aimon, the Em- ployer then demanded a Board certification of Petitioner. Aimon objected and threatened to call a strike, if Petitioner were not recog- nized. Aimon was then advised that if the Intervenor would be will- ing to waive jurisdiction over the drivers, the Employer would sign a contract with Petitioner. On June 27, Intervenor advised the Em- ployer that it would not waive such jurisdiction. Two days later, on June 29, the present petition was filed with the Board. The Employer and the Intervenor contend that the contract of March 23 is a bar to these proceedings under the General Electric X-Ray doctrine,5 because the petition was not filed until almost 6 months after 8 The recognition clause of this contract reads as follows : "The Company recognizes the Union as the exclusive bargaining agent for all employees in the Company 's Hillside, N. J., shop, excepting office employees and guards and all supervisors with the right to hire, fire, promote, or otherwise effect changes in the status of employees , or effectively recommend such action , with regard to wages, hours of work, and other conditions of employment." * At the hearing, Aimon, as representative of the Petitioner , testified that Clarke said the contract with Intervenor would not interfere with Petitioner 's representation of the drivers, a statement which Clarke and Guerin deny. Without resolving this conflict , Guerin admitted that Clarke did ask for a condensed form of contract. Aimon also testified that Clarke agreed to a vacation clause in the condensed contract similar to the one in the Inter- venor's contract. The April 20 contract contains the following : "Sec. 5 Vacations shall be granted employees governed by this contract on the same basis as other employees in the employ of said company of the Hillside , N. J., Branch belonging to the Independent Union." " General Electric X-Ray Corp., 67 NLRB 997. 882191-51-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Petitioner notified the Employer of its `claim of majority., , The. Employer argues that there was no excuse for Petitioner 's failure to file the petition after January 3 , and that even if delay was justified- there was no excuse for failing to file after the Petitioner was informed of the rival union's activity in the middle of January or after it had received a copy of the contract with the Intervenor on March 31. Con- cerning all the conversations , conferences, meetings and negotiations- in which the Employer's representatives participated, the Employer stated it had been made clear that there was no necessity for a separate written agreement with the drivers and that the conferences requested would have been held with anyone seeking to discuss similar problems with the Employer." The Petitioner contends that the contract is not a bar because its representation of a majority of the drivers was never contested and because it believed the Employer had actually negotiated with it in good faith, some 3 months before and after the contract was signed with the Intervenor, on practically all the substantive terms of the Petitioner's proposed contract. We held in the General Electric X-Ray case, supra, and in numerous decisions subsequent thereto, that where a petition for certification is filed more than 10 days after a bare claim of representation an agree ment otherwise valid which is executed in the interval should be held to constitute t bar to an election. In the Acme Brewing case 7 we stated that "this ruling was intended to prevent labor organizations. from playing `dog in manger' by frustrating collective bargaining. indefinitely through advancing merely colorable claims to represen- tation with the intention of gaining . time in order to augment their strength." Where, however, the claim of majority was not a mere naked one. but was substantial and had a recognizable foundation , we have not applied the 10-day rule. In the Acme Brewing case, supra, the Em- ployer signed a contract with the Intervenor 2 days after it was noti- fied of the Petitioner's majority claim. The petition was not filed un- til almost a month after such notice , and the Employer sought to invoke the principle of the General Electric X-Ray case. We held that. the rule did not apply on the ground that the Petitioner 's claim was not a mere "naked" one; "on the contrary, the Petitioner's active in- cumbency at the time it asserted its continued claim to representation amply demonstrated the substantiality of that claim and refutes the, implication that it was desirous of delaying valid collective bargaining for the purpose of strengthening its positions." 6 Guerin testified that during the period between January 3 and June 27 there were from 10 to 20 telephone conversations and meetings with Petitioner 's representatives. 7 Acme Brewing Co., 72 NLRB 1005. CHICAGO BRIDGE & IRON COMPANY 405= In the McLeod Veneer Co. case," the incumbent petitioner requested a renewal of its contract with the employer. While this request was pending, the employer learned of a schism in the ranks of the petitioner and believed that a majority of his employees had shifted their al- legiance to the Intervenor, with whom he then signed a contract. The petition was filed thereafter. We held that the contract was not a bar,, as the employer had knowledge of the unresolved question of repre- sentation at the time the contract was signed. It is true that in the instant case, the Petitioner was not an in- cumbent union, as was the situation in the McLeod and Acme cases cited above. It is also apparent, however, that Petitioner had every reason to believe that the Employer had accorded it that status. The Employer was not only aware of the Petitioner's claim to represent a. majority of the drivers, but proof of this claim had been submittectt early in the negotiations and was never questioned thereafter. Peti- tioner and the Employer negotiated frequently concerning the sub- stantive terms of the proposed agreement both before and after the contract with the Intervenor was signed, and several of the proposals, made by the Petitioner were actually put into effect .9 In at least one instance, the Employer dealt with the shop steward of the Petitioner concerning a grievance of a member of the Petitioner. Under all these circumstances, we are of the opinion that the Petitioner was en- titled to proceed in its negotiations with the Employer without resort to the Board's processes without fear of penalty. Our view is not altered by the fact that the petition was not filed until some months after the Employer gave Petitioner a copy of its contract with the Intervenor. Even after that date, the Employer continued to nego- tiate with the Petitioner and finally refused to sign an agreement with Petitioner only 2 days before the petition before us was filed. Under; these circumstances, we find that the doctrine of the General Elec- tric X-Ray case is not applicable here. The contract between the In- tervenor and the Employer is not a bar to this proceeding. Accordingly, we find that a question affecting commerce exists con- cerning the representation of employees of the Employer, within the meaning of Section. 9 (c) (1) and Section 2 (6) and (7) of the Act."' 8 73 NLRB 859. 1 The Employer agreed to put into effect the Petitioner's proposed wage scale in the latter- part of January and made payments retroactive to the week of January 16. 10 The present case is distinguishable from Reade Scientific Corp. 73 NLRB 310. The• petitioner there notified the employer of its majority claim on August 16 and met with the, employer on three occasions thereafter . The petition was filed September 10, one day after the employer signed a contract with the intervenor . The employer contended the petition- was barred by the contract . We held under the facts of that case that the employer had! not recognized petitioner as the bargaining agent nor justified petitioner in the brief that it might achieve recognition without a Board determination . In the present case, the Employer never questioned the claim of majority status of the Petitioner, but eonferced 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The appropriate unit. The Employer is engaged in the business of fabricating and erect- ing large steel structures such as water and oil tanks which are fabri- cated at four fabricating plants. The function of the Hillside, New Jersey, shop is to serve the field crews of the Employer's eastern sea- board division. The equipment is stored and overhauled at the shop and distributed to the field crews in large heavy trucks. The drivers herein involved drive these trucks throughout the eastern division on special assignments and load or unload the equipment from railroads and warehouses. The evidence shows there are 57 employees at the Hillside plant, of whom some 13 are drivers and helpers. The latter spend more than two-thirds of their time on the road, and the remainder at the shop. When at Hillside, they occupy themselves in greasing and oiling and otherwise attending to their trucks and when not so engaged, they work with other employees, burning steel, running drill presses, pack- ing tools, and moving equipment around in the yard. The drivers are supervised by the salve superintendent as most of the inside men, except those in the machine shop. The drivers receive the same bene- fits and substantially the same pay as other employees. The Petitioner seeks a unit consisting of the 13 regularly assigned drivers and helpers. The Employer and Intervenor contend that a plant-wide unit is appropriate on the ground that the work at the plant is integrated among all the employees, the drivers spend a sub- stantial amount of their time at the shop, and are under the same supervision as most of the shop employees. These over-the-road truck drivers are engaged essentially in the function of transportation, whose interests, duties, and conditions of employment, as truck drivers, differ substantially from employees engaged directly in production work. The record shows that the drivers and helpers are often away from the plant for weeks and even months at a time. There is little interchange between them and the production workers 11 We have frequently held that employees, such as these may appropriately constitute a separate unitl2 with Petitioner on many substantive terms of a contract several of which were actually put into effect. . 11 The shop superintendent testified , at the hearing , that if drivers are ill or not available, regularly assigned , qualified helpers are used to drive the trucks . If no helpers are available for drivers , there are three or four men in the shop who are qualified to drive. Almost any qualified workers might be used as helpers but the use of employees other than those regularly assigned is infrequent and intermittent. 12 National Automotive Fibres, Inc ., Findlay Division, 81 NLRB 1232 , where the Board held that over-the-road drivers , at automotive fibres plant , may sever from the production and maintenance unit, notwithstanding that they worked 25 percent of their time in the receiving and shipping department and despite the fact that drivers at the employer's other plants were included in the larger unit. CHICAGO BRIDGE & IRON COMPANY 407 We find that all truck drivers and their regularly assigned helpers employed at the Employer's Hillside, New Jersey, plant, excluding all other employees and supervisors, as defined in the. Act, may con- stitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. However, we shall make no final unit determination at this time, but shall be guided in part by the desires of these employees as expressed in the election hereinafter directed. If a majority vote for the Petitioner, they will be taken to have indicated their desire to constitute a separate appro- priate unit. 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 30 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 voting group described in paragraph numbered 4, above, who were employed during the payroll period immediately preceding the date of this Direction of Election, including employees who did not work during said payroll 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- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement to determine whether they desire to be represented, for purposes of collective bargaining, by Truck Drivers & Chauffeurs Union, Local 478, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers, A. F. L., or by Independent Erection Equipment Maintenance Union, or by neither.