Matlack, Inc.

BAGGETT BULK TRANSPORT, INC. 287 Baggett Bulk Transport, Inc., a wholly owned subsidi- ary of Matlack, Inc.' and Southern Conference of Teamsters and its affiliated Local Unions, Petition- er. Case l0-RC-8550 September 21, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer H. Carlton Bryan, Jr. Thereafter, pursuant to Section 102.67 of National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 10, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Petition- er and the Intervenor2 filed briefs. 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. They 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 and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner and Intervenor are labor organi- zations within the meaning of the Act. 3. The Petitioner has filed a petition seeking an election in a unit of over-the-road drivers, loaders, i The name of the Employer appears in the caption as stated in the record 2 International Union of District 50, Allied and Technical Workers of the United States and Canada, on behalf of its Local 14502 3 By motion filed with the Board on August 17, 1971, Petitioner requested permission to withdraw its petition it asserted as its reason therefor that because of the Employer's refusal to recognize either of the competing unions during the pendancy of this proceeding and the Board's delay in processing this case, the employees engaged in a series of wildcat strikes leading to certain counteraction by the Employer in the form of striker discharges, thereby creating a situation which makes it "not possible to tell on the present record who shall be entitled to vote, who are present employees , or to otherwise conduct a fair election at this time." The Employer filed a letter stating it had "no objection" to the requested withdrawal Intervenor , however, opposed the request For the reasons hereafter indicated we find merit in Intervenor's opposition It is clear that Petitioner instituted this proceeding at a time when , pursuant to a bargaining contract with the Intervenor, the Employer was recognizing the Intervenor as the representative of employees described in the petition and that Petitioner wished the Board to declare that contract invalid and no bar to its representation claims it also appears that in now requesting the withdrawal of this petition, Petitioner has not disclaimed its interest in and local drivers in the Employer's Baggett Bulk Division, including owner-operators, but excluding maintenance employees.3 The Intervenor contends that an existing collective-bargaining contract with the Employer is a bar to such an election.4 The Employer is neutral.5 For a number of years before 1969, Baggett Transportation Company, herein called Baggett Transportation, was engaged as a common carrier in transporting goods and bulk materials in local and interstate commerce. Its bulk operations were carried on through a wholly owned corporate subsidiary, Baggett Bulk Transport, Inc., herein called Baggett Bulk. Intervenor has been recognized by Baggett Trans- portation as the bargaining representative of its employees for many years. This recognition included the employees of Baggett Bulk so long as the latter remained a subdivision of Baggett Transportation. On April 10, 1969, Baggett Transportation sold its Baggett Bulk business to Matlack, Inc. However, because the approval of regulatory authorities was necessary for the sale to become effective and this approval was delayed, Matlack was not able to take over and operate the Baggett Bulk business until April 15, 1970. Meanwhile, as Baggett Transportation's collective-bargaining contract with the Intervenor was expiring, the two parties executed a new agree- ment effective from May 16, 1969, to May 16, 1972. This contract covered all Baggett Transportation employees, including those of Baggett Bulk. On April 29, 1970, after Matlack had begun operating the former Baggett Bulk subsidiary, Matlack and the Intervenor signed an agreement whereby Matlack agreed to be bound by the Intervenor's 1969 contract with Baggett Transportation, with respect to the Baggett Bulk employees.6 For its other driver employ- ees, Matlack bargained with the Teamsters. However, this collective-bargaining agreement with the Team- representing the employees In these circumstances, we find, in accord with the position of the Intervenor, that it would not effectuate the policies of the Act to grant the Petitioner's requested withdrawal of its petition. Rather, we believe that the disturbing situation described by the Petitioner evidences a need for the Board's prompt determination of the basic issues litigated in this case We therefore deny Petitioner's request for the withdrawal of its petition 4 Intervenor agrees with the composition of the Petitioner's proposed unit in the event an election is directed The Employer, however, would exclude owner-operators as independent contractors and would have maintenance employees combined in a single unit with the requested drivers and loaders. For reasons set out infra, we find it unnecessary to reach or to determine the employee status of the owner-operators, or to pass upon the Employer's contention with respect to the unit placement of maintenance employees 5 During the early stages of the hearing the Employer agreed with the Intervenor's contract-bar contention. However, on the last day of the hearing, the Employer changed its position to one of neutrality and requested an election 6 Petitioner questions the bona fides of this assumption agreement We find the Petitioner's evidence offered in support thereof insufficient to justify rejecting it as spurious or invalid 193 NLRB No. 40 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sters specifically provided that it was not applicable to those operations of Matlack covered by a collective- bargaining contract with another labor organization. The Intervenor contends that its 1969 collective- bargaining contract with Baggett Transportation is applicable to the Baggett Bulk employees and is a bar to this proceeding by virtue of Burns International Detective Agency, Inc., 182 NLRB No. 50, enforce- ment denied in relevant part 441 F.2d 911 (C.A. 2), and the assumption agreement.? Petitioner argues that the expanding unit doctrine precludes the application of contract-bar principles." We find no merit in Petitioner's argument. In view of the assumption agreement, we find it unnecessary to consider the application of Burns International Detective Agency, Inc., to the facts of this case. The assumption agreement is in fact a new contract running from the date of execution, April 29, 1970, to May 16, 1972.9 The petition was not filed until December 14, 1970, almost 10 months after the execution of the assumption agreement. Accordingly, the assumption agreement would serve to bar the petition unless Petitioner's expanding unit contention is sustained.10 At the time of the hearing in this case, Baggett Bulk had 87 driver and loader employees and 2 lease operators, whose status as employees is in dispute. For the week ending May 1, 1970, the week of the 7 The Stubmtz Greene Spring Corp, 113 NLRB 226 B General Extrusion Company, Inc, 121 NLRB 1165 9 The Stubmtz Greene Spring Corp, supra io In General Extrusion, the Board declared (121 NLRB at 1167) When the question of a substantial increase in personnel is in issue, a contract will bar an election only if at least 30 percent of the complement employed at the time of the hearing had been employed at the time the contract was executed , and 50 percent of the job classifications in existence at the time of the hearing were in existence at the time the contract was executed ii Although the Employer would have had the Board combine maintenance employees with the drivers and loaders in a single unit if an election were directed, it did not and does not claim that a unit confined to signing of the assumption agreement, Baggett Bulk had 26 driver and loader employees, and 38 lease operators. Assuming that the lease operators are employees, as contended by the two unions, then at the time of the assumption agreement the unit had 72 percent of the employees employed at the time of the hearing, far more than enough to satisfy the General Extrusion 30-percent standard. If lease operators are excluded from the count on both dates, then the proportion of employees on the assumption date to those on the date of the hearing was .2988 or 30 percent reducing the above figure to two decimals by conventional arithmetic, also sufficient to meet the General Extrusion standard.ii Accordingly, we find that, inasmuch as Baggett Bulk had a representative number of employees at the time Matlack and the Intervenor executed their assumption agreement, this agreement is a bar to the present proceeding. We further find that no question concerning representation exists within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. We shall therefore dismiss the petition. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. the drivers and loaders covered by Intervenor's contract is an inappropriate unit Nor does Petitioner assert any such claim Indeed , it appears that the maintenance employees described by the Employer became part of the Employer's work force in late 1970 or early 1971 as a result of the Employer's acquisition of another company, that they were unrepresented at that time , that Intervenor subsequently acquired authorization cards from a majority of them, and that, on the basis of such cards, the Employer agreed to recognize the Intervenor as their representative and entered into memorandum agreements dated February 3 and March 12, 1971, with respect to them In these circumstances, and as Petitioner's representation claim does not extend to the maintenance employees, we find that there is no question concerning their representation