Tri-State Transportation Co., Inc.

310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tri-State Transportation Company , Inc. and Teamsters Local Union 676, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner . Case 4-RC-7970 October 23, 1969 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Joseph C Kelly on December 4 and 17, 1968, and January 6, 15, and 16, 1969 Following the hearing, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of ,Procedure, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision. Thereafter, briefs were filed by the Employer, Petitioner, and Intervenors' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, including the briefs, the Board finds I The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein 2. The Petitioner, Teamsters Local 676, and the Intervenors, Local 240 and Local 102, are labor organizations claiming to represent certain employees of the Employer 3. The Petitioner seeks an election in a unit of all of the Employer's drivers, drivers' helpers, platform men, warehousemen, mechanics, mechanics' helpers and utility men employed at its Vineland, New Jersey, terminal The Intervenors and the Employer contend that the Employer's contracts with both Unions cover these employees and bar the petition. With respect to the contracts urged as a bar, the Employer, as a member of the Greater New York Tailors' Expressmen's Association, is a signatory to a collective-bargaining agreement with Local 240 covering drivers, drivers' helpers, platform men and warehousemen. The contract is effective from June 'Clothing Express Drivers & Helpers Union Local 240, affiliated with the International Brotherhood of Teamsters (herein referred to as Local 240) and Cloak , Dress Drivers' and Helpers' Union Local 102 affiliated with International Ladies Garment Workers Union (herein referred to as Local 102), intervened on the basis of contract interests I, 1968, to May 31, 1971 In addition, the Employer is a member of the Cloak and Suit Trucking Association, Inc and the Garment Truckmen Association of New Jersey, both of which entered into identical collective-bargaining agreements with Local 102 effective February I, 1967, to January 31, 1970. The bargaining unit covered therein is chaffeurs, drivers and helpers, mechanics, mechanics' helpers and mechanics' apprentices (utility men). The Petitioner contends, with respect to drivers, drivers' helpers, warehousemen and platform men, that the Employer has applied both contracts to employees in the same appropriate unit and, accordingly, that these contracts amount to conflicting contracts by rival labor organizations, and cannot be invoked as a bar to an election. In this respect, the Petitioner claims that the Employer has applied the terms of the Local 102 contract only to members of Local 102 and that the terms of they Local 240 agreement have been applied only to members of Local 240. Therefore, the Petitioner contends, both contracts apply to employees in a single-appropriate unit, fail individually to encompass appropriate units of employees, and cannot be asserted as a bar 2 While the 8 employee members of Local 102 are theoretically covered by the Local 102 contract, the record reveals that the Employer has, in fact, generally applied the terms of the Local 240 contracts to them as well as to the 60 employees who are members of Local 240 Thus, for the period when Local 102's contract provided for lower wages than the 240 contract, the Employer paid to employees who were Local 102 members the wages set out in the Local 240 contract as well as raises, whenever due, under the 240 contract In addition, the Local 240 shop steward handled the grievances of employees who were Local 102 members (Local 102 had no shop steward) The same hours and general working conditions are applied to all.' However, the Employer contributes to the union welfare and pension funds depending upon the employee's membership. The foregoing, in our view, does not establish that both are "members only" contracts. Rather, we find that the Local 240 contract has been applied to all the drivers, drivers' helpers, platform men and warehousemen at the Employer's Vineland, New Jersey, terminal, and that it embraces an appropriate unit for collective-bargaining purposes. However, the Petitioner contends that Local 240's separate supplemental agreement with the Employer, which expired on September 30, 1968, 4 'Appalachian Shale Products Co, 121 NLRB 1160, 1164 'The 240 and 102 drivers , drivers' helpers, warehousemen and platform men handle both types of garments (male and female), often in one load Members of both unions work on trucks together, using the same equipment and performing the same duties They are subject to the same seniority rules and have the same supervisors 179 NLRB No. 54 TRI-STATE TRANSPORTATION CO., INC days before the applicable filing date of the petition 4 is the pertinent agreement for contract bar purposes As the master agreement and the supplemental agreement have different terminal dates, the one to be considered for election bar purposes is the agreement which embodies the basic terms and conditions of employment 5 The record reveals that most of the basic terms and conditions of employment are set out in the master agreement Thus, the union-security provision, the discharge and lay off provisions, the grievance and arbitration procedure, the no-strike and lockout clauses, union steward visitation provisions, and most general conditions are set forth in the master agreement. The supplemental agreement contains certain variations in wages, vacations and holidays, dates of welfare and pension fund payments, and hours Since these modifications deal only with the peculiarities of the Employer's operations at this facility and in no way change the basic terms of employment covered by the master agreement, their incorporation in the supplemental agreement does not warrant consideration of the supplemental agreement as the basic agreement. Rather, it is the master agreement which under the circumstances herein must be determinative for contract bar purposes. As the new master agreement had been entered into on June I, 1968, it is a bar to the representation petition,' for the unit covered therein This master agreement does not cover mechanics, mechanics' helpers and utility men However, Local 102's contracts have included those particular classifications in industrywide contracts since 1964. Therefore, Local 102 urges that its most recent association contract bars the petition for this group of employees which, we find, would otherwise constitute a separate appropriate unit for the purposes of collective bargaining While the 1964 and 1967 association contracts covered mechanics, mechanics' helpers and utility men by classification, the Petitioner contends that the parties did not apply the contracts in question to individuals employed by the Employer in those classifications. The record reveals that these employees received none of the benefits set forth in 'It is clear that the amended petition of October 4, 1968, constituted a substantial change from the original petition of September 20, 1968, and is therefore considered a new petition filed after the expiration of the supplemental agreement Cf Kaiser Cement & Gypsum Corp , 158 NLRB 1740, at fn 2, National Carloading Corp, 167 NLRB No 116, and St Louis Independent Packing Company, 169 NLRB No 157 'Appalachian Shale Products Co , supra at 1164, General Electric Company, 125 NLRB 718, 719, Swift & Company, 145 NLRB 756 'Since we have found that the master agreement bars the petition herein, we need not decide whether before September 30, 1968, Local 240 and the Employer had agreed to a new supplemental contract , when they agreed to submit all provisions on which no agreement had been reached to arbitration and incorporate the arbitrator' s decision with respect thereto in the new contract 311 the association contracts. The Employer did not make payments to the health and welfare funds of Local 102 for these employees, but instead paid the same Blue Cross and Blue Shield insurance for them as it did for its unrepresented employees. The Employer did not give these employees the vacations and holidays set forth in the 102 contract The union-security provisions were never applied, and these employees have never authorized check off. Thus, until October 1968, the Employer did not apply the contracts to the mechanics, mechanics' helpers and utiltiy men, and Local 102 did not seek to administer the contract as to them. In September 1968, the Petitioner obtained representation cards from the mechanics, mechanics' helpers, and utility men. It was only after Petitioner demonstrated its interest in these employees by petitioning to represent them that Local 102, on October 15, 1968, instituted arbitration proceedings to force the Employer to apply the terms of Local 102's contract to these classifications of employees. The arbitrator's decision required the Employer to apply Local 102's contracts to the employees in question retroactive to February 1, 1967' While Local 102 contends that the arbitrator's award established coverage of these employees by the Local 102 contracts since February 1967, it is clear that any effort by Local 102 to apply its contract to these employees occurred only after the Petitioner sought to represent them, and that they were not, in fact, represented when the petition was filed Under these circumstances, we find that the arbitrator's award and Local 102's belated attempt to apply its contract does not establish the existence of a stabilizing labor agreement which bars a representation election among the mechanics, mechanics' helpers and utility men.' Accordingly, we find that the petition herein has raised a question concerning the representation of the following employees who constitute a unit appropriate for the purposes of collective bargaining9 within the meaning of Section 9(b) of the Act All mechanics, mechanics' helpers, and utility men employed at the Employer's terminal in Vineland, New Jersey, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. [Direction of Election'° omitted from publication.] 'The arbitrator ordered the Employer to reimburse the employees for overtime payments , holiday pay, and vacation pay which the contract provided, and to pay to the Union's benefit funds an amount equal to what should have been paid since February I, 1967 'Cf Moveable Partitions. Inc. 175 NLRB No 149 'G Fox & Co . Incorporated. 155 NLRB 1080, 1082-83, Diamond T Utah. Inc, 124 NLRB 966 "In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties to the election should have access to a list of voters and their days of the date of this Decision and Direction of Election The Regional addresses which may be used to communicate with them Excelsior Director shall make the list available to all parties to the election No Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company , extension of time to file this list shall be granted by the Regional Director 394 U S 759 Accordingly , it is hereby directed that an election eligibility except in extraordinary circumstances Failure to comply with this list, containing the names and addresses of all the eligible voters , must be requirement shall be grounds for setting aside the election whenever proper filed by the Employer with the Regional Director for Region 4 within 7 objections are filed