Nissen Baking Corp.

NISSEN BAKING CORPORATION 589 Nissen Baking Corporation 1 and Truck Drivers, Chauffeurs and Helpers Union, Local No. 42 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case No. 1-RC-6018. May 17, 1961 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John C. Burgoon, 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 National Labor Relations Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No 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 Act for the following reasons: The Petitioner seeks to sever a group of five garage mechanics from a long-established production and maintenance unit of bakery em- ployees represented by the Intervenor, Local 182, Bakery & Con- fectionery Workers International Union of America, which inter- vened at the hearing on the basis of its contractual interest. The current contract for a production and maintenance unit of the Em- ployer's employees was executed August 28, 1960, but made retro- actively effective to May 1, 1960. However, the petition herein was filed on May 2, 1960, hence is not barred by said contract because filed before the contract's execution date and after the expiration of the former contract. See DeLuxe Metal Furniture Company, 121 NLRB 995, 1000. On September 21, 1960, the Board reversed the action of the Re- gional Director in dismissing this petition, and ordered a hearing as to (1) whether the auto mechanics sought to be severed are craftsmen, and (2) whether the Petitioner traditionally represents the craft. Testimony at the hearing concerning the craft characteristics of these mechanics is meager, consisting of a conclusionary statement that "their duties" constitute a craft, and a general statement that "all" were hired as mechanics, with varying skills. There is nothing in the record concerning the experience and skills of the various members of this group of mechanics, and the secretary-treasurer of the Inter- venor, who testified that they had all been employed since his employ- 1 The name of the Employer appears as amended at the hearing. 131 NLRB No. 90. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment with the Intervenor, said that he had seen them do only "a few repairs and a few tire changes." As to its status as a traditional representative of garage mechanics, Petitioner put in evidence its current contract with the Federation of New England Bakery Employers covering classifications of trans- port and special delivery drivers, as well as garage employees and warehousemen. Under this contract it presently represents the Em- ployer's truckdrivers and route salesmen. In addition Petitioner's business agent testified that it had "probably 10, maybe 12" contracts covering garage mechanics alone. None of these was offered in evidence. Thus the proof of traditional representation brought out at the hearing consists of a single contract covering not only garage me- chanics, but two types of truckdrivers and warehousemen, plus an affirmative allegation that Petitioner does have some other contracts covering garage mechanics alone. In this proceeding, it is incumbent upon Petitioner to prove that it has traditionally devoted itself to serve the special interests of garage mechanics and has historically represented them in separate units z The area contract in evidence proves nothing in this regard, covering as it does drivers and ware- housemen as well as garage mechanics. The unsupported testimony concerning the existence of some mechanics-only contracts is also unpersuasive.3 Nor do we consider that the recent cases cited by our dissenting colleague are proof of his position that this Union is devoting itself to serve the special interests of mechanics in the manner of a recently organized craft union such as we found a traditional representative in the Friden Calculating case referred to in the dissent. Although covering a period of 2 years, only 11 cases are cited from among the great number in which the Teamsters has been certified, and not one of the 11 is a true craft unit limited to auto (or garage) mechanics, their apprentices and helpers, without the addition of noncraft type employees. The only one of the 11 which purports to be a true craft unit, the Acme Concrete case, ex- cludes heavy duty mechanics, thus covering only part of the skilled group. From its administrative experience the Board is, of course, cognizant of the fact that the Teamsters represents untold numbers, of garage mechanics, but, as the Board has held, the fact that a union may represent many employees in the same classification as those sought to be severed as a craft is not proof in itself that the union has devoted itself to serving the special interests of such employees.- Accordingly, we conclude on this record that the Petitioner has not maintained the burden of showing that it is a traditional representa- 2 See Hughes Aircraft Company ( Tucson Operations ), 117 NLRB 98, 101. $ See Baugh & Sons Company, 114 NLRB 937, 939. 'See Standard Oil Company, 116 NLRB 1017, 1019. NISSEN BAKING CORPORATION 591 tive of garage mechanics within the meaning of the American Potash role.' We shall therefore dismiss the petition .6 [The Board dismissed the petition.] MEMBER RODGERS, dissenting : I do not agree with the majority determination that the Petitioner has not maintained the burden of showing that it is a traditional rep- resentative of garage mechanics within the meaning of the American Potash rule. To support its contention that it is a traditional representative of garage mechanics, the Petitioner produced evidence that it (Local 42) had "probably 10, maybe 12" contracts covering garage mechanics alone. This evidence stands uncontradicted in the record. In the Friden Calculating Machine Co., Inc. et al.,7 case, where a Board majority held that a newly organized craft union met the tradi- tional union test for craft severance purposes, the Board, inter alia, stated : The only difference between the well-established and the more recently organized craft unions is the factor of experience. But this, it seems to us, is a matter for the concern of the employees and not of the Board. Like considerations apply in the instant case. It was only recently that the Board made its initial determination that garage mechanics are craftsmen who may be severed, as such, from an existing unit." In the circumstances, I can perceive no substantial difference between a newly organized union and one that, together with all other unions, was until recently proscribed by the Board's own administrative de- termination from representing this particular class of workers on a craft basis. For the purpose of severing mechanics, the "traditional representative" concept should, in accordance with American Potash, give due consideration to representative experience. It is patent that the petitioning local, on the record before the Board has in fact shown that it qualifies as a "traditional representa- tive" of garage mechanics. For, as indicated above, there is nothing before the Board refuting the evidence that this Teamster Local has had a number of contracts covering units of garage mechanics. This unrefuted evidence is substantiated by the Board's own records.9 5 American Potash & Chemical Corporation, 107 NLRB 1418. 8 Because of the decision herein Members Leedom and Fanning do not reach the question of the craft status of the employees sought to be served. 1 110 NLRB 1618, 1619. 8 See International Harvester Company, 119 NLRB 1709 ; and Diamond T Utah, Inc, 124 NLRB 966. ,9 In the following cases, all unpublished decisions issued during the past 2 years, the Teamsters' International, or one of its locals, was certified after winning Board -ordered elections in the units described hereinafter : Hamilton Casco, Inc, Cases Nos. 35-RC-1679 and 35-RC-1680 (garage employees, including mechanics) ; B. F. Goodrich Tire Com- 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My colleagues rely, for the result they reach, upon the fact that the Teamsters Union also frequently represents, in addition to mechanics, other employees. This reliance is misplaced. The representative ex- perience of the Teamsters in this respect is not unlike that of other unions that have been found by the Board to be traditional bargain- ing representatives of craft groups, notwithstanding their representa- tion of broader or industrial type units.10 On the basis of testimony which shows that the Employer's mechan- ics make repairs on the Employer's fleet of trucks and maintain them in a separate garage, and that the mechanics exercise the customary skills associated with automotive mechanic craftsmen, I would find that the requested employees constitute a true craft group and would direct a severance election for them in that unit. CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Decision and Order. pang, Case No. 32-RC-1216 ( servicemen , mechanics, and recappers ) ; Mack Trucks, Inc., Case No. 9-RC-3621 ( service department and maintenance employees, including garage mechanics and their helpers ) ; Central Motor Lines, Inc., Case No. 11-RC-1114 ( mechanics, helpers, stock room employees and janitors ) ; Purity Bakeries Corporation, Case No. 10-RC-4213 ( automotive mechanics and servicemen ) ; Vincent Chevrolet, Inc., Case No. 7-RC-4166 ( service and maintenance employees , including mechanics and garage em- ployees ) ; Evans Lincoln Mercury, Inc., Case No. 7-RC-4006 ( garage and service em- ployees, including mechanics ) ; Hartman White, Inc., Case No. 26-RC-1397 (mechanics, helpers, extra mechanic, parts men, and porters ) ; Vaughn Chevrolet, Case No . 18-RC- 4338 ( service and maintenance employees , including mechanics ) ; and West Virginia-Ohio Motor Sales, Inc., Case No, G-RC-2551 ( mechanics and service employees). In particular, see Acme Concrete Corporation, Case No. 12-RC-684 ( not published in NLRB volumes ) : There, as a result of Board-directed election in a craft unit composed of automotive mechanics and their helpers , the Teamsters was certified on November 27, 1959 , in the unit found appropriate by the Board and from which heavy duty mechanics, gasmen , greasemen , and stock clerks were excluded. io Compare, for example, the breadth of the jurisdictional claims of the International Association of Machinists , set forth in its constitution ( 1957 ), and the United Brother- hood of Carpenters and Joiners of America, set forth in its constitution ( 1955 ), with the like claim of the Teamsters set forth in its constitution ( 1957 ) : ". . . jurisdiction over . . . automotive . . . maintenance employees , garage workers . . . . Playbill, Incorporated and Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Case No. 2-CA-7537. May 18, 1961 DECISION AND ORDER On January 30, 1961, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found 131 NLRB No. 86.