Shaver Transfer Co.

SHAVER TRANSFER COMPANY 939 K. D. Shaver d/b/a Shaver Transfer Company 1 and Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 71,2 Petitioner Huckabee Transport Corp. and General Drivers, Warehousemen and Helpers Local Union No. 509, Petitioner Augusta Cartage Company and General Drivers, Warehousemen and Helpers Local Union No. 509, Petitioner. Cases Nos. 11-RC- 992, 11-RC-1001, and 11-RC-1002. December 14, 1957 DECISION, ORDER, AND DIRECTION OF ELECTIONS Under separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before .Jerold B. Sindler, 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. Huckabee Transport Corp. is engaged in business as a common ,carrier in the States of Georgia, North Carolina, and South Carolina. Its annual revenue derived from the transportation of freight in inter- state commerce exceeds $100,000. Accordingly, we find that it will effectuate the policies of the Act to assert jurisdiction over Huckabee herein 4 Augusta Cartage Company operates as a contract carrier perform- ing pickup and delivery service, principally for Huckabee, in the vicinity of Huckabee's North Augusta, South Carolina, terminal. During 1956, it received approximately $99,700 from Huckabee for such services. During the same year it performed similar services valued at approximately $1,200 for Carolina Freight Carriers. Caro- lina Freight Carriers annually derives revenue in excess of $100,000 a year from transportation of freight in interstate commerce. Accord- ingly, as Augusta Cartage performs services valued at in excess of $100,000 for instrumentalities of commerce which meet the Board's jurisdictional standards, we find that it will effectuate the policies of the Act to assert jurisdiction over Augusta herein.' Shaver Transfer Company operates as a contract carrier perform- ing pickup and delivery service exclusively for Huckabee in the vicin- 1 The names of the Employers have been amended to conform with the evidence adduced -a`t the hearing. 2 The Board having been notified by the AFL-CIO that it deems the Teamsters' certificate of affiliation revoked by convention action, the identification of this union is hereby .amended. 3 The Employers' contentions as to adequacy of compliance with Section 9 (f), (g), and (h) involve administrative matters not cognizable in this proceeding . See Desaulniers and Company, 115 NLRB 1025 ; Standard Cigar Company , 117 NLRB 852. 4 Edelen Transfer and Storage Company, Inc., 110 NLRB 1881. s Pazan Motor Freight, Inc., 116 NLRB 1568; Jonesboro Grain Drying Cooperative, 110 NLRB 481; Edelen Transfer and Sio-rage Company, Inc., supra. 119 NLRB No. 121. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ity of Huckabee's Charlotte, North Carolina, terminal. During 1956,. Shaver's revenue was no more than $70,000, all of which was derived from hauling goods for Huckabee which either were destined for inter- state shipment from Charlotte or had been shipped interstate to Char- lotte. As Shaver neither derives income of $100,000 or more for services which constitute a part of interstate commerce nor performs services valued at $100,000 for Huckabee, an instrumentality of com- merce over which the Board will assert jurisdiction, we find that Shaver does not independently satisfy the Board's jurisdictional standards.' Moreover, apart from the fact that Shaver performs services exclu- sively for Huckabee, all of the evidence establishes that Shaver and Huckabee do not constitute a single employer. Thus, it appears that Shaver and Huckabee are separately owned and controlled, that each handles its own labor relations, employs and directs its own employees, and that there is no interchange of employees between the two em- ployers. Accordingly, we find that it will not effectuate the policies of the Act to assert jurisdiction over Shaver herein and shall dismiss the petition in Case No. 11-RC-992. 2. The labor organizations involved claim to represent certain em- ployees of the Employers. 3. Questions affecting commerce exist in Cases Nos. 11-RC-1001 and 11-RC-1002 concerning the representation of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. In Case No. 11-RC-1001, Local 509 seeks to represent a unit of local truckdrivers employed by Huckabee at its Sumter, South Caro- lina, terminal. The Employer contends that such a unit is inappro- priate and that the only appropriate unit in which these employees may be included is one of all over-the-road drivers, local drivers, and dockworkers in its entire system. In addition to its Sumter terminal, the Employer operates 12 other terminals including 1 at Columbia, South Carolina, where the Em- ployer's offices and principal place of business are located. It employs a total of approximately 68 over-the-road drivers, 55 local drivers, and 40 dockworkers. Most of the over-the-road drivers are domiciled at Columbia and are under Columbia supervision. The remaining over-the-road drivers and most of the local drivers and dockworkers are attached to the different terminals throughout the system. Employees in all three classifications are paid uniformly throughout the system at rates determined at Columbia. No terminal manager has authority to change the rates. Similarly insurance benefits, vaca- tions, and holidays are systemwide and are established at Columbia. However, while overall company policies appear to be established at G Breeding Transfer Company, 110 NLRB 493; Pazan Motor Freight, Inc., supra. SHAVER TRANSFER COMPANY 941 Columbia, there is no evidence that day-to-day operations at any of the terminals are similarly controlled by Columbia. There are three local drivers at the Sumter terminal whom the Petitioner seeks. Apart from the terminal manager, who supervises and has authority to hire and discharge the three local drivers, there are no other employees at Sumter. All of the drivers make pickups .and deliveries in Sumter and surrounding towns. One makes a fixed daily run of about 110 miles round trip to surrounding localities, con- suming about 75 percent of his time. The remainder of his time is :spent at the terminal in loading and unloading. Another driver resides in Columbia and drives a load from Columbia to Sumter, approxi- mately 40 miles, each morning, returning with a load for Columbia from Sumter each evening. He is paid for these trips on a mileage basis, the basis on which over-the-road drivers are paid. During the day he works as a local driver at Sumter and is paid for this work on an hourly basis, like other local drivers. The third driver also makes an evening run to Columbia taking a return load back to Sumter the following morning. At Columbia, he sleeps in a room provided by Ituckabee at the terminal. During the day he works as a local driver at Sumter, spending about 50 percent of his time on a regular run between Sumter and Shaw Field, a distance of 11 miles. He is paid on the same basis as the other driver making the regular run to Colum- bia. There is no evidence that either driver making regular runs to Columbia performs any duties at the Columbia terminal or is under Columbia supervision while there. Likewise, there is no evidence of transfers or interchange of employees between Sumter and any other terminal. While it appears on the above facts that there are a number of factors that would support a finding that a systemwide unit as pro- posed by the Employer is appropriate, they are not so compelling as to require a finding that only such a unit is appropriate. A number of factors support a finding that a unit confined to the Sumter terminal, as requested by the Petitioner, is also appropriate. In view of these factors, including the facts that : There is no bargaining history for any of the Employer's employees; no other labor organi- zation seeks a broader unit; the Employer's various terminals are geographically separated by substantial distances; there is no evidence of transfer or interchange between the terminals; there is local super- vision, hiring, and discharge of drivers ; and there is no evidence that the Sumter terminal lacks autonomy in the conduct of its day-to-day operations, we conclude that the unit sought by the Petitioner in Case No. 11-RC-1001 is appropriate.? In Case No. 11-RC-1002, the parties stipulated that a unit of the Employer's drivers, warehousemen helpers, and dockworkers is 7 Harvey Lumber d Supply Co., 118 NLRB 737; Jocie Motor Lines, Inc., 112 NLRB 1201. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate. Accordingly, we find that the following employees of the Employers constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: A. All local truckdrivers employed by Huckabee Transport Corp. at its Sumter, South Carolina, terminal, excluding office clerical employees, guards, and supervisors as defined in the Act. B. All drivers, warehousemen, helpers, and dockworkers employed by Augusta Cartage Company at North Augusta, South Carolina, excluding office clerical employees, guards, and supervisors as defined. in the Act. [The Board dismissed the petition in Case No. 11-RC-992.] [Text of Direction of Elections omitted from publication.] MEMBER MURDOCK, dissenting in part: I would assert jurisdiction over Shaver Transfer Company which is an essential link in interstate commerce, deriving $70,000 annually from handling goods destined for or received from interstate shipment. Except in the case of Charleston Transit 8 (where I initially dis- sented and which was recently decided by the Board again on remand from the court of appeals), I have not for some time reiterated my fundamental disagreement with the application of the 1954 juris- dictional standards to dismiss cases. I have so refrained from dis- senting, in part because I regarded myself bound by earlier majority opinions, and in part because I believed that pursuant to the Guss decision of the Supreme Court, the Board, albeit slowly, was making steady administrative progress toward the formulation and adoption of a more liberal set of jurisdictional standards as a substitute for the 1954 standards. However, more recent administrative actions, of the Board indicate that the long-delayed though expected liberalization of the jurisdictional standards is becoming more and more of a chimera rather than something just around the corner. Under these circumstances, I can no longer justify continued silence on my part in the face of the compelling obligations placed upon this Board by the Guss decision as well as my own long-held views in opposition to curtailment of the Board's jurisdiction. The Goss case was decided by the Supreme Court on March 25, 1957-nearly 10 months ago. The Court in clear and unmistakable language voiced the obligation of this Board to take what action it could to reoccupy the "no man's land" created by that decision, regard- less of what action or inaction might lie with Congress. After pointing out that "Congress is free to change the situation at will," the Court said : "The National Labor Relations Board can greatly reduce the area of the no man's land by reasserting its jurisdiction...." 9 118 NLRB 1164. SHAVER TRANSFER COMPANY 943 The Court's language does not permit the interpretation that be- cause Congress does not act, this Board can fail to fulfill its responsi- bility to "greatly reduce" the area of the no man's land. This is par- ticularly true where the Supreme Court also pointedly went out of its way to include dicta suggesting the invalidity of the current re- strictive jurisdictional standards. It did this by referring to testimony of the ex-Chairman of the Board before appropriations committees shortly before their adoption in 1954 which, the Court said, "indicates that its [the Board's] reasons for making that change were not basically budgetary. They had more to do with the Board's concept of the class of cases to which it should devote its attention." 0 Ac- cordingly, I must discharge my own responsibilities as a Board Member under the Guss decision by putting myself on record for an immediate liberalization of the 1954 jurisdictional standards to reoccupy the no man's land created by that decision. In the case of instrumentalities of interstate commerce or links thereto, I would return to the de minimis test which the Board followed for 4 years under the 1950 standards. Under that test jurisdiction would ob- viously be asserted over this Employer, and I dissent from the refusal of the Board majority to do so. MEMBER JENKINS, dissenting in part : I do not agree that we should dismiss the petition in Shaver Trans- fer Company, 11-RC-992, on the ground that its operations do not independently satisfy the Board's present jurisdictional standards. As I have stated in my dissent in Chicago Metropolitan Mutual As- surance Company, 119 NLRB 352, pending a reappraisal of the Board's jurisdictional standards, I would assert jurisdiction in every case where the assertion of jurisdiction would effectuate the purposes, of the Act. Shaver Transfer Company is a direct and essential link in the distribution of goods destined for or received from interstate shipment through a common carrier and its revenue from this service is in the approximate amount of $70,000 annually. It therefore meets the test I have enunciated. Until the Congress enacts legislation limiting the Board's jurisdiction or the Board itself revises its stand- ards to meet the implications contained in the Guss decision 10 I shall continue to disagree with my colleagues in their refusal to extend the protection of the Act to employers and employees engaged in a business affecting commerce. In Huckabee Transport Corp., 11-RC-1001, I would find, in agree- ment with the contention of the Employer, that a systemwide unit is the appropriate unit. I base this conclusion on the fact that all 0 This accords with my original dissent from the adoption of these standards in Breeding Transfer Company, 110 NLRB 493. 10 Cuss v. Utah Labor Relations Board, 353 U. S. 1. '944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over-the-road drivers work under overall supervision from Columbia and that the three drivers at Sumter do over-the-road driving in addi- tion to local pickup and delivery. The pay scale for local drivers is uniform throughout the system as are other benefits. The Peti- tioner's request for a separate unit seems clearly to be based on extent of organization rather than on a community of interest sep- arate and apart from that of the other 153 employees who do the identical type of work at the other terminals. General Electric Company ( Clock and Timer Department) and International Union of Electrical, Radio and Machine Work- ers, AFL-CIO, Petitioner. Case No. 1-RC-4741. December 14, 1957 .SECOND SUPPLEMENTAL DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVES On March 8, 1957, under the direction and supervision of the Regional Director for the First Region, an election by secret ballot was conducted pursuant to a Decision and Direction of Election issued in this proceeding on February 14, 1957.' After the election the Regional Director served upon the parties a tally of ballots which showed that of approximately 1,300 eligible voters, 1,254 cast ballots, of which 636 votes were for and 569 were against the Petitioner, 49 ballots were challenged and 3 ballots were void. On March 15, 1957, the Employer timely filed objections to conduct affecting the results of the election. The Regional Director investi- gated the objections and, on April 22, 1957, issued and duly served upon the parties his report on objections in which he recommended that the objections be overruled. The Employer timely filed excep- tions to the Regional Director's report and a supporting brief. The Regional Director, on May 17, 1957, then issued and duly served upon the parties a supplemental report on objections. The Employer filed ,exceptions to the Regional Director's supplemental report. The Peti- tioner filed "Response to Employer's Exceptions and Brief," and the Employer filed "Comments on Petitioner's Response to Employer's Exceptions and Brief." On June 26, 1957, the Board issued a Supplemental Decision, Order, and Direction of Second Election 2 setting aside the March 8 election. On August 6, 1957, the Petitioner filed a motion for reconsideration of that Supplemental Decision and, on August 7,1957, the Employer filed opposition thereto. On August 14, 1957, the Board issued an order 1 Not reported in printed volumes of Board Decisions and Orders. 2118 NLRB 805. 119 NLRB No. 128.