Motor Transport Labor Relations, Inc.

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Motor Transport Labor Relations, Inc. and The Voice of the Teamsters Democratic Organizing Committee, Independent,' Petitioner. Case No. 4-RC-5059. October 12, 1962 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 Katherine W. Neel, 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. Upon the entire record in the case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations 2 involved claim to represent certain employees of the Employer.' 3. A 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. 4. The Employer, MTLR, is a Pennsylvania corporation organized for the purpose of representing its member companies-primarily private contract and common carriers-in their relations with various labor unions. Over an extensive period of time, the Intervenors and the MTLR have entered into a series of collective-bargaining agree- ments covering the drivers, helpers, platform men, motor lift-truck operators, and checkers employed by the particular MTLR member companies listed in each contract. The most recent of these agree- ments, which, as noted previously, was effective from January 1, 1960, to December 31, 1962, covers the aforedescribed classifications of employees of approximately 300 MTLR member companies who were either parties signatory to the agreement or who subsequently joined the MTLR, agreed to be bound by the agreement, and became a party thereto. The Petitioner, in effect, seeks to represent the same group of employees as is covered by this existing contract. The Intervenors and the Employer are in general agreement with the Petitioner's unit 1 Hereinafter referred to as The Voice. 2 Locals 107, 470, 312 , and 331, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent , were permitted to intervene in this proceeding on the basis of their existing contractual interest The contract , effective from January 1 , 1960, to December 31, 1962 , is not urged as a bar to an election 2 The Intervenors refused to stipulate that the Petitioner, The Voice , is a labor organiza- tion as defined in the Act However, the record shows that The Voice was formed for the purpose of dealing with the Employer concerning the wages, hours , and conditions of employment of its employees . Accordingly, we find that The Voice is a labor organization within the meaning of Section 2 ( 5) of the Act. Root Dry Goods Co., Inc., 126 NLRB 953 139 NLRB No. 20. MOTOR TRANSPORT LABOR RELATIONS, INC. 71 position. The lone area of disagreement as to the scope of the unit involves the employees of certain household goods haulers and coal dealers. With respect to these employees, the Intervenors and Em- ployer argue that they are covered by the existing contract and hence are part of the existing unit. The Petitioner, on the other hand, contends that these employees are not covered by the contract and there- fore have been and should be excluded. We find merit in the Peti- tioner's position. Article I of the existing agreement between the Intervenors and the MTLR expressly provides that "it shall not apply in the case of any such employees whose hours of work, wages, and working conditions are governed by separate contracts between Union and MTLR, relat- ing to particular branches of truck service, such as the moving of house- hold goods, etc.' [Emphasis supplied.] Further, the record discloses that in 1950, because of the peculiar problems encountered by com- panies engaged in household goods hauling and coal distributing, the Intervenors and the MTLR entered into two separate agreements covering employees of member companies engaged in those activities. These agreements were supplemented in 1953 and are still in effect, subject to annual modifications which have taken place to date. In view of all the foregoing, and most particularly because the MTLR and the Intervenors themselves have excluded employees covered under separate contracts from the broad contract unit in question, we shall exclude the employees of the household goods haulers and coal dealers from that unit. The parties also disagree as to the inclusion of certain part-time employees. The Intervenors and the Employer take the position that only regular employees should be included in the unit and be declared eligible to vote. Furthermore, they urge that the Board hold that any employees who do not meet the seniority standard under article V, sec- tion 2 of their existing contract (that is, 33 days worked for any one employer during any 90 consecutive calendar days) be declared casual employees without a sufficient interest in the conditions of employment to be included in the unit. The Petitioner, on the other hand, con- tends that this standard is too rigid. While not specifically setting forth any alternative to the proposed seniority standard, the Peti- tioner urges that this is a discretionary matter for the Board and that, in exercising its discretion, the Board should arrive at a more lenient standard for determining which employees are part-time regulars, eligible to vote for a collective-bargaining representative. All the parties are thus agreed that approximately 7,300 employees who have attained seniority status are regular employees includible in 4 The same provisions also appeared in the 1957 contract 6 These figures were used by the parties during the hearings and were based on a list covering a 3-month period ending March 31, 1962. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unit. In fact, the large majority of these employees continue to work on a regular 5-day-per-week basis after they qualify as seniority men. The parties' disagreement centers around the approximately 1,700 nonseniority employees. The evidence of record discloses that some 50 percent of these employees worked as little as 1 to 5 days during the calendar quarter January 1, to March 31, 1962, while 25 percent worked as many as 20 to 40 days over a similar time span for one or more members of the MTLR, but less than 33 days for any one such employer: There are approximately 65 workdays in a calendar quar- ter. It would seem reasonable to conclude that employees who devote approximately one-quarter or more of that time performing work for employers in the bargaining unit have a substantial and continuing interest in their employment conditions which warrants their inclusion in the unit. The fact that these part-time employees perform the same jobs and functions as the regular employees further substantiates this position. Under these circumstances, we find that all nonseniority employees who worked a total of 15 days for one or more of the MTLR members covered by the existing contract during the calendar quarter preceding the eligibility date hereinafter adopted are regular part-time employees and we shall include them in the unit. Accordingly, we find that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: 6 All drivers, helpers, platform men, motor lift-truck operators, and checkers, including regular part-time employees, employed by Em- ployers who are members of the MTLR and who are presently parties to the 1960 agreement between the MTLR and Teamster Locals 107, 470, 312, and 331, but excluding watchmen; guards; office clerical em- ployees; checkers who are management representatives and do not handle freight or serve as drivers, helpers, or operators of motor lifts; ' employees of household goods haulers and coal dealers covered under separate MTLR contracts; and superivsors as defined in the Act. 5. The parties all joined in requesting that the Board adopt March 31, 1962, as a cutoff date for voting eligibility. They selected this date because of the difficulties in obtaining payroll records from MTLR employer-members scattered throughout the country and be- cause that date coincides with the last effective date of the one com- prehensive and mutually acceptable employee list, which had been E The Petitioner contends that all employees on layoff more than 1 year prior to the election do not have any reasonable expectancy of return to employment and should there- fore be ineligible to vote. However, no evidence was introduced to substantiate this con- tention . Accordingly, we shall not pass upon its merits at this time Naturally, the Petitioner may, at a later date, by proper challenge raise the question of the eligibility of laid-off employees , if any. 7 The parties agree that these checkers should be excluded from the unit THE GRAND FOOD MARKET 73 complied for purposes of this proceeding by the pension fund ad- ministrator. However, adoption of an eligibility date approximately 6 months preceding a direction of election might disenfranchise newly hired regular employees, as well as regular part-time workers. On the other hand, we are aware that there are difficulties entailed in securing current employee lists which would be required if we were to utilize our normal eligibility date. Therefore, we adopt a more recent date than proposed by the parties but one earlier than we would ordinarily specify, and direct that all regular employees employed during the calendar week ending August 31, 1962, shall be eligible to votes As the eligibility of part-time employees is dependent on the period of time worked over a 3-month period, we find that such em- ployees shall be eligible to vote if employed for the requisite length of time during the 3 months preceding August 31, 1962. [Text of Direction of Election omitted from publication.] 8 As we gather from the record that the regular employees constitute a relatively stable group with minimal variations, the parties to the proceeding may, if they desire and the Regional Director concurs, utilize the March 31 , 1962, list subject to its being brought up to date as of August 31, 1962. This would entail the addition of the names of those employees who after March 31, 1962, obtained seniority status or worked 15 days during the prescribed 3-month period and the deletion of the names of those workers who have, between March 31 and the date of the election , quit or been discharged for cause. Daniel Crean and Joseph Messore d/b/a The Grand Food Market and Retail Store Employees Union Local 444, Retail Clerks International Association, AFL-CIO. Case No. 13-CA-4459. October 15, 1963 DECISION AND ORDER On April 4, 1962, Trial Examiner Eugene F. Frey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions, the briefs, and the entire record in the 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Rodgers, Fanning, and Brown]. 139 NLRB No. 16.