York Transfer & Storage Co.

YORK TRANSFER & STORAGE CO. 139 substantial amount of work performed by the builders in the production of staves and the related and interdependent character of their work as builders, we further find that they have a sufficient community of interest with the other em- ployees to be included in a unit of production and maintenance employees. Accordingly, we shall include them in the unit. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's Ste. Genevieve, Missouri, plant, including the acting foreman and checker, and the builders, but excluding office clericals, professional employees, guards, and supervisors as defined in the Act. 5. As indicated above, the Employer's operations are seasonal in nature . During the peak of its operations it employs approximately 11 employees. At the time of the hear- ing in August, the Employer estimated that its operations, which had already then been curtailed, would come to a halt in about 6 weeks and would not be resumed until about March or April of next year. Under the circumstances, and in accordance with our policy in seasonal industry cases, we shall direct that the election herein be held at or about the approximate seasonal peak on a date to be determined by the Regional Director among the employees in the appropriate unit who are employed during the payroll period immediately preceding the date of the issuance of the notice of election by the Regional Director. [Text of Direction of Election omitted from publication.] YORK TRANSFER & STORAGE CO., Petitioner and LOCAL 193, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL. Case No. 35-RM-57. November 20, 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 Harry Berns, 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 labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the 107 NLRB No. 47. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. We find no merit in the Union's contention that a current contract bars this proceeding. The contract in question, effective from July 15, 1953, to July 1954, was executed with the Union by 10 specific employers, not including the instant Employer. Furthermore, as is clearly shown in the evidence, discussed in detail below, the Employer did not participate, directly or indirectly, in the negotiation of this contract, or delegate authority to any individual, association, committee, or group of employers, to bargain for, or bind it with respect to the contract terms. 4. The Employer in its petition alleges as appropriate a single-employer unit consisting of all truckdrivers, truck helpers, packers, and warehousemenin its employ. There is no dispute as to the composition of the alleged unit. However, the Union contends that only an associationwide or multi- employer unit, which would include the present employees, is appropriate for bargaining purposes. The Union's position, in substance, is that the Employer has been a member and participant in an employer association of household moving and storage companies in Indianapolis, Indiana, and that this association has historically bargained with the Union on a multiemplo}rer basis. The Union asserts that the association is presently known as the Indianapolis Household Movers Association. The essential facts, as appears in the record, are as follows: In 1939 there was formed an organization of em- ployers in Indianapolis under the name of Marion County Movers Association. This association bargained with the Union with respect to a single unit embracing certain of the association members. However, the testimony shows that the Marion County Movers Association--which was incorporated, had a paid executive secretary, and required the regular pay- ment of dues by its members--ceased to function actively as an organization when its executive secretary resigned a year and a half after its inception. Thereafter, the Union continued negotiations for each contract with a committee of employers, or an attorney representing specific employers, and the contract reached was later signed by various individual household movers in the area. The Employer's participation in such contracts with the Union began in 1949. In 1950, a 3- year contract was entered into between the Union and "the undersigned Employer," and was signed by 16 specific em- ployers, including the instant Employer. This contract, which was made effective until July 15, 1953, with provision for automatic renewal thereafter on an annual basis, was re- opened by the Union in letters dated April 20, 1953, which the Union sent to each of the employer signatories to the contract. Following the reopening, in June 1953, negotiations were commenced between the Union and certain employer repre- sentatives, including Attorney Beattey, which culminated in YORK TRANSFER & STORAGE CO. 141 the 1-year contract discussed above in connection with the issue of the alleged contract bar. As above noted, there were 10 employers which ultimately signed the 1953 contract, not including the instant Employer, which did not participate, directly or indirectly, in the negotiation of the contract. The evidence shows that the Union definitely understood when it agreed to this contract that the Employer herein would not sign. It also appears that earlier in 1952 the Union had sent a proposed contract to individual employers in the area which was signed by 10 such employers on an individual basis before the 1953 contract was negotiated by the joint employers. There is no evidence of the existence at any time of the Indianapolis Household Movers Association, or of a similarly named organization. It does appear that in recent years various household movers in Indianapolis had been gathering at monthly dinner meetings in the spring and fall of the year. In these meetings , apart from the social aspects present, business matters of common interest were discussed, and when the employers were faced with the question of contract negotiations with the Union , a panel of negotiators was desig- nated by this group. The instant Employer attended these meetings on an irregular basis before and after the 1953 contract was consummated. However, there is no indication that any formal arrangement was in effect among the em- ployers meeting in this manner: There was no office or stationery, no membership rolls were kept, no dues were paid, no agreements binding the members were made, and the employers who attended these meetings varied on each occa- sion. Nor was there any showing that the employers who jointly signed the negotiated contract with the Union all attended these meetings or were part of this group. At the dinner meeting in which the panel was named for negotiating the 1953 contract, the instant Employer instructed the group that it could not possibly go along with the contract. Likewise, before the 1953 contract was negotiated, the Em- ployer informed the Union that it would not sign the contract. At the hearing, the Employer stated its position, that while it will continue to be interested in the problems of household goods carriers in the area , it will commit itself to do nothing which, in its judgment, would be detrimental to the proper operation of its business. All the term contracts in evidence were expressly drawn between the Union and "the undersigned Employer"; no association was named. And there is no evidence that in the negotiation of these contracts representations were made to the Union that bargaining was being conducted on behalf of an association. Attorney Beattey who participated in the negotia- tion of the 1953 contract (but not the 3-year contract in 1950) was retained by only 8 specific employers which were named by him during the negotiations; he did not represent all the ultimate signatories to the contract , and clearly notthe instant Employer. In each case before the joint contract with the 337593 0 - 55 - 11 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer group was finally negotiated, it appears that the Union executed individual contracts with various Indianapolis employers in the household moving business. On August 10, 1953, the Union struck only those household movers which had not agreed to the terms of the Union' s proposed contract, but not all the employers alleged by the Union as constituting the association. Under Board law , it is not a prerequisite for the establish- ment of an associationwide or multiemployer unit that there be evidence of an employer association with formal organiza- tional structure , or that the members delegate to the associa- tion final authority to bind them ,' or that the association membership be nonfluctuating . 2 The settled criterion for the inclusion of an employer in a multiemployer bargaining unit is whether the employer unequivocally intends to be bound in collective bargaining by group, rather than individual, action.3 Thus , participation by an employer in group bargaining provides such evidence of the employer ' s intention.4 But whatever an employer's previous bargaining policy or practice may have been , there is no question as to the principle that the employer may properly withdraw from an existing multi- employer unit, provided it clearly evinces at an appropriate time 5 its intention of pursuing an individual course in bar- gaining. 6 Thus, on the immediate issue before us , it is unnecessary to decide whether or not a sufficiently stable core of employers, including the Employer, have historically been involved in group bargaining with the Union to warrant the finding of a continuing , definable multiemployer unit. For, in any case, as we are convinced on this record , the Employer has clearly indicated in a timely fashion its intention to pursue an individ- ual course in bargaining . 7 We find, therefore, that a single- employer unit of the Employer's employees is appropriate for bargaining. As already noted, the parties are in agreement as to the composition of the unit . Some question was raised at the hearing, however, with respect to the supervisory status of the crating foreman (Harves ), and the warehouse foreman (Sloan). The Union would include these individuals in the unit; the Employer indicated no opposition to such inclusion and would leave the matter for Board determination . Neither of these individuals has the authority to hire or discharge em- 'See Coca-Cola Bottling Works Co., 91 NLRB 351; Metz Brewing Co., et al., 98 NLRB 409. 2See Samuel Bernstein and Co., et al, 98 NLRB 1144. 3See Associated Shoe Industries, 81 NLRB 224; Pacific Metals Co., 91 NLRB 696. 4See The Plumbing Contractors Assn.. 93 NLRB 1081; Coca-Cola Bottling Works Co, 93 NLRB 1414; cf Wirts Distributing Co., 82 NLRB 669 5 See Laris Motor Sales, Inc., 104 NLRB 1106; cf. Pioneer, Inc , 90 NLRB 1848. 6 See Air Conditioning Co. of So. Calif, 81 NLRB 946; Milk and Ice Cream Dealers, 94 NLRB 23; Sullivan Mining Co., et al., 101 NLRB 1366; Laris Motor Sales, Inc., ibid 7 See cases cited in footnote 6. MEIER ELECTRIC & MACHINE CO., INC. 143 ployees, to grant time off, or to assign employees to the different departments in the Employer's business. Both direct their subordinates in the performance of their duties, which were testified as routine. However, both may recommend that an employee be transferred out of their respective departments to some task elsewhere in the company. One instance was cited in which Harves recommended that an employee be discharged, but this employee was merely trans- ferred to a different department. Harves and Sloan both spend a comparatively small percentage of their time directing employees, and spend the large remainder of their time in physical work or in clerical and checking duties. We conclude on these facts that Harves and Sloan are not supervisors, and shall therefore include them in the unit. Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All truckdrivers, truck helpers, packers, and warehousemen of the Employer at its Indianapolis, Indiana, plant, including the warehouse foreman and the crating foreman, but excluding vehicle mechanics, office clerical employees, guards, profes- sional employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Member Rodgers took no part in the consideration of the above Decision and Direction of Election. MEIER ELECTRIC & MACHINE CO., INC. and INTERNA- TIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, Petitioner. Case No. 35-RC-932. Novem- ber 20, 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 Bruce Gillis, Jr., 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 labor organization involved claims to represent cer- tain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 107 NLRB No. 43.