Pacific Intermountain Express Co.

480 DECISIGNS OF NATIONAL LABOR RELATIONS BOARD WE WILL withdraw from, and will give no effect to, the"Submission Agreement" which we entered into with International Brotherhood of Electrical Workers, Local Union No 1710, affiliated with American Federation of Labor, on or about December 5, 1951, and will withhold from IBEW any other illegal support, assistance, and recognition as representative of the employees in the above-described bargaining unit WE WILL NOT encourage membership in IBEW nor discourage membership in UE WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations , to join or assist United Electrical, Radio & Machine Workers of America, (UE) Local 1421, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of United Electrical, Radio & Machine Workers of America, (UE) Local 1421, or any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any labor organization. PRYNE & COMPANY, INC., Employer. (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must be altered, defaced, or covered by any other material. PACIFIC INTERMOUNTAIN EXPRESS CO. and OFFICE EM- PLOYEES INTERNATIONAL UNION, LOCAL NO. 29, AFL,' Petitioner PACIFIC INTERMOUNTAIN EXPRESS CO . and PACIFIC IN- TERMOUNTAIN EXPRESS OFFICE EMPLOYEES ASSOCIA- TION,2 Petitioner . Cases Nos. 20 -RC-2061 and 20 -RC-2064. June 9, 1953 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Shirley N. Bingham, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 'Hereinafter referred to as AFL 2 Hereinafter referred to as the Association. The AFL moved to amend its petition to limit the unit it sought to represent to the office clerical employees of the Emoryville terminal The hearing officer referred the motion to the Board for ruling. The motion is granted. 105 NLRB No. 54 PACIFIC INTERMOUNTAIN EXPRESS CO. 481 2. The labor organizations involved claim to represent cer- tain employees of the Employer.4 3. Questions affecting commerce exist concerning the repre- sentation of employees of the Employer within the meaning of Section 9 ( c) (1) and Section 2 (6) and ( 7) of the Act. 4. The Employer is engaged in interstate trucking under an Interstate Commerce Commission certificate . Its central office is located in Oakland , California . It has terminal facilities located in Emoryville , California, 3 miles away , and in other cities in California . It also has terminal facilities in Nevada, Utah, Colorado , Kansas, Missouri , and Illinois. The Association , Petitioner in Case No . 20-RC-2064, seeks a unit composed of all office clerical employees employed at the Oakland general office and at the Emoryville terminal . The AFL, Petitioner in Case No . 20-RC-2061 , seeks a unit composed of all office clerical employees at the Emoryville terminal. There are factors supporting the appropriateness of the unit sought by the Association . Thus, the skills required of the ter- minal employees and their duties are similar in nature to those required of the general office employees . The record indicates that wage rates between the 2 offices are comparable and that there is some interchange of employees between the 2 groups. The general office and the Emoryville terminal are located only 3 miles apart. The Employer testified that because of its prox- imity to the general office , the Emoryville terminal is used as a testing ground for new personnel and administrative techniques before they are introduced throughout the system . The two groups of employees are subject to the same ultimate super- vision. Furthermore the general office personnel division often- times screens new employees to be hired at the Emoryville terminal. On the other hand , certain other factors support the appro- priateness of a separate unit confined to the office clerical employees at the Emoryville terminal. Thus , the terminal office clerical employees are concerned mainly with the movement of freight and the preparation of freight bills and bills of lading, whereas the general office clerical employees are engaged in administrative and clerical duties pertaining to all terminals, including the Emoryville terminal , and the overall operations of the Employer . The Employees of the two groups are under different immediate supervision . The district manager in charge of the terminal office has complete authority over the hiring and discharge of terminal employees . The terminal employees are required to work on Saturdays , Sundays, and on night shifts , whereas the general office employees are not. There is no history of collective bargaining on either a single- plant or multiplant basis. We find that the Association exists for the purpose, in whole or in part, of dealing with employers concerning grievances , labor disputes , wages, rates of pay, hours of employment, or conditions of work and is therefore a labor organization within the meaning of the Act. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing and on the entire record, we are of the opinion that the Emoryville terminal office clerical em- ployees may by themselves constitute an appropriate units or that the office clerical employees of the Emoryville terminal and the general office may together constitute an appropriate unit.6 However we shall make no final unit determination at this time, but shall direct that the questions concerning representa- tion which have arisen be resolved by separate elections by secret ballot among the employees in the following voting groups: 1. All office clerical employees employed at the Employer's Oakland, California, general office, excluding supervisors as defined in the Act, guards, and all other employees. 2. All office clerical employees employed at the Employer's Emoryville, California, terminal, excluding supervisors as defined in the Act, guards, and all other employees. Upon the results of these elections will depend, in part, our final unit determination. If the employees in group 2 select a bargaining representative different from that selected by the employees in group 1, the Board finds the group 2 employees constitute a separate appropriate unit; and in these circum- stances if the employees in group 1 also select a bargaining representative the Board finds that the employees in group 1 also constitute an appropriate unit. If the employees in the two groups select the same bargaining representative , the Board finds that together they constitute an appropriate unit. The Regional Director conducting the elections directed herein is instructed to issue a certification of representatives to the union or unions in the unit or units which may result from the elections. Our dissenting colleagues would have the Board adopt a new procedure for tallying the employees' votes in the elections hereinafter directed. Careful consideration has been given to their proposal and, although recognizing the equitable princi- ples supporting it, we do not believe that the time is propitious for a change in administrative procedures that have operated successfully over a substantial period of time. The need for the proposed relief is likely to arise so rarely in practice that we doubt whether the theoretical arguments for changing the old practices are strong enough to override the mechanical compli - cations which we would be inviting. [Text of Direction of Elections omitted from publication in this volume.] Members Murdock and Peterson , dissenting in part. We agree that the factors supporting the appropriateness of either a single -plant or a two-plant unit are sufficiently 5Contmental Oil Co., 74 NLRB 597; Rutherford Freight Line Inc , 72 NLRB 1302 6Central Wisconsin Motor Transport Company, 85 NLRB 287; Swift and Company. 99 NLRB 1497. PACIFIC INTERMOUNTAIN EXPRESS CO 483 balanced to warrant the direction of a Globe-type election in this case. We, however, disagree with the majority opinion insofar as it perpetuates what, in our opinion, is an outmoded and impractical procedure for tallying the votes cast in Globe - type elections such as are directed herein. The Globe election has been employed by the Board since early in its history' as a means of assisting the Board to make appropriate unit findings in cases such as this where the factors favoring the appropriateness of two or more of the units re- quested are evenly balanced . In such circumstances , it has been the policy of the Board to consider the desires of the employees as the controlling factor in its unit determination . Accordingly, an election is held among the employees inthe group which the Board has found may appropriately constitute a separate bargaining unit or part of a more comprehensive unit. At the time an election is also held among the remaining employees with whom , as found by the Board , the first group may be appro- priately joined . The purpose of the election among the first group of employees (the Globed group ) is to determine which type of unit representation they prefer . If they vote for the union seeking to represent them as a separate unit, they have thereby indicated their preference for separate representation and the Board finds such unit appropriate . On the other hand, if they vote for the union that seeks the more comprehensive unit , they are taken to have indicated their desire to be repre- sented as part of that unit. Under the Board ' s current system of tallying the votes in such elections , and basing its unit deter- minations on the results thereof, the desires of the employees are often ignored . Thus, in this case for example, if the Asso- ciation won in the group 2 election but lost the group 1 election, it would be certified for the group 2 employees as a separate bargaining unit, the very type of unit representation that they had plainly rejected.8 Moreover, under the current practice, even though the group 2 employees vote against separate repre - sentation, the Association must receive a majority of the votes cast in each election in order to be certified for the unit it is seeking. This is true regardless of the fact that a majority of all the employees involved may have voted for the Association. Thus, in such circumstances the will of the majority of the employees in a unit which the Board has said is appropriate is also thwarted. We submit that such arbitrary results can be avoided simply by changing the present method of tallying the ballots cast in Globe-election cases to provide for pooling the votes in the event the Globed group votes for inclusion in the larger unit. The pooled votes would then be counted to ascertain whether or not the union seeking the larger unit had received a majority of the votes cast in the two elections. 7 The first such election was conducted in The Globe Machine and Stamping Co , 3 NLRB 294. Hence the term "Globe election." In its decision in that case the Board said, "in such a case where the considerations are so evently balanced, the determining factor is the desire of the men themselves " 8See for example , J I. Case Company, 81 NLRB 969. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To illustrate , suppose in the instant case the results of the group 1 and group 2 elections were as follows: Group 1 Votes for the Association ...................................... 58 Votes against the Association ................................ 60 Group 2 Votes for the Association ...................................... 15 Votes for the AFL .................................... . .......... 10 Votes for no union ............................................... 2 As a majority of the employees in the group 2 election have expressed their desire to be represented by the Association in a two-plant unit, the votes cast in both elections would be pooled as follows: Votes for the Association ...................................... 73 Votes for the AFL ........ ....................................... 10 Votes for no union ............................................... 62 Total valid votes cast ........................................... 145 As the number of votes cast for the Association constitutes a majority of the valid votes cast , the Association would be certi- fied for the two-plant unit. As illustrated above, in tallying the pooled votes, the votes cast against the participating labor organizations in the group 2 election would be counted as votes against the Association; the votes cast for the AFL would be counted as part of the valid votes cast but not as votes for or against the Association. Under this procedure a second election would be held if the tally of pooled votes showed that a majority of the valid votes were not cast for or against the Association . The Regional Director would be directed to conduct such further election among the em- ployees in the two-plant unit to determine whether or not they desired to be represented by the Association. To illustrate , suppose the results of the group 1 and group 2 elections were as follows: Group 1 Votes for the Association...................................... 55 Votes against the Association ................................ 63 Group 2 Votes for the Association...................................... 15 Votes for the AFL ............................................... 10 Votes for no union ............................................... 2 As in the first illustration above, the votes cast in both elections will be pooled as follows: Votes for the Association...................................... 70 Votes for the AFL ............................................... 10 Votes for no union ............................................... 65 Total valid votes cast . .......................................... 145 AMERICAN SERVICE BUREAU 485 As neither the number of votes cast for the Association nor the number of votes cast for no union constitutes a majority of the total valid votes cast, a second election would be conducted among the eligible employees in the two-plant unit to determine whether or not they wish to be represented by the Association. The practice of pooling the votes in Globe elections is not an entirely new idea of the Board.9 We believe that this procedure would result in unit findings of the Board which conform to the desires of the employees and would therefore better effectuate the intent and purpose of the Globe election doctrine. 9See for example Pacific Gas and Electric Company, 3 NLRB 834; New York Evening Journal, Inc., 10 NLRB 197, 209. AMERICAN SERVICE BUREAU and INSURANCE AND ALLIED WORKERS ORGANIZING COMMITTEE, CIO, Petitioner. Case No. 21-RC-2954. June 9, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Floyd C. Brewer, hearing officer. The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Employer moves to dismiss the petition upon the ground that there exists a local of the Petitioner admitting to membership employees of the Employer , and that this local, which the Employer contends is the real party in interest, has not complied with the filing requirements of Section 9 (f), (g), and (h) of the Act . Although the record discloses that literature has been distributed in the name of a proposed local and one witness declared himself to be the appointed shop steward of the group whom Petitioner seeks to represent , the record fails to establish the existence of a local possessing any formal organization , charter, bank accounts , officers , or any other characteristics indicating an ability to function as a labor organization within the meaning of the Act. Under these circumstances we find, contrary to the contention of the Employer, that there is no local or subsidiary body of the Petitioner admitting the employees involved herein to mem- bership and , accordingly , we regard compliance by the Peti- tioner alone as sufficient .' Moreover , the express intention of the Petitioner to establish a local, in the event of success lAs the record and the Employer's brief fully present the issues involved herein and the positions of the parties, the Employer's request for oral argument is hereby denied. 2 General Box Company, 89 NLRB 1439, 1441. 105 NLRB No. 63.