Groendyke Transport, Inc.

GROENDYKE TRANSPORT, INC. 381 Groendyke Transport, Inc. and John C. Sanders, Petitioner and Southern Conference of Teamsters, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Groendyke Transport, Inc. and Richard C. Britton, Petitioner and Winifred G. Smith, Petitioner and Donald L. Whitecotton, Petitioner and Southern Conference of Teamsters, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 23-RD-286, 16-RD-577, 16-RD-579, and 16-RD-581 November 16, 1973 DECISION AND ORDER On March 26, 1973, the Acting Regional Director for Region 16 issued his Decision and Direction of Election in Cases 16-RD-577, 16-RD-579, and 16-RD-581 (which were consolidated for hearing) involving the Employer's Duncan and Ardmore, Oklahoma, and Wichita Falls, Texas, terminals, respectively.' By telegraphic order dated April 13, 1973, the Board denied a request for review of the decisions; thereafter, by telegraphic order dated April 24, 1973, the Board vacated the'denial and granted review sua sponte and stayed the elections pending the decision on review. On February 28, 1973, the Acting Regional Director for Region 23, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, transferred Case 23-RD-286 to the Board. That case involves the Employer's Angleton, Texas, terminal.2 On August 3, 1973, the Board consolidated Case 23-RD-286 with Cases 16-RD-577, 16-RD-579, and 16-RD-581 and issued a notice to show cause why the Board should not dismiss the decertification petitions as untimely filed on the basis of the record in Case 16-RD-564 (Groendyke Transport, Inc., 205 NLRB No. 67), which also issued on August 3, 1973. The Board has considered the entire record in this matter including the Employer's response to notice to show cause and the Union's reply to the Employer's response to notice to show cause and makes the following findings: Each of the units herein was involved in an earlier unfair labor practice proceeding in which the Board found that the Employer had violated Section 8(a)(5) I The voting unit at each location was the same, to wit- all drivers, owner-dnvers, regular part-time drivers, regular part-time owner-drivers employed at the Employer's terminal, but excluding all terminal managers, dispatchers, mechanics, servicemen, office clericals, casual part-time drivers, casual part-time owner-drivers, all other employees, guards and supervisors as defined in the Act. and (1) of the Act by its refusal to bargain with the Union regarding its _ Duncan, Ardmore, Wichita Falls, Angleton, and Irving (Texas) terminals which were certified by the Board on February 24, 1969, as separate units. We therefore ordered the Employer to bargain, upon request, with the Union in each of the units, and also ordered that the initial year of certification for each unit shall be deemed to begin on the date the Employer commenced to bargain with the Union in each appropriate unit.3 By letter dated October22, 1971, the Union made a demand for bargaining. The Employer's response, by letter dated October 25, indicated a willingness to start bargaining and stated, inter alia, "As you know, since each terminal was decided to be a separate unit, we will, of course, have to negotiate separately for each terminal. We will leave it to you to decide for which terminal you desire to negotiate first." An initial bargaining session was held with respect to the Irving unit on November 30, 1971, and two more sessions on February 10 and 11, 1972. On June 19, 1972, decertification petition 16-RD-557 was filed regarding the Irving unit. The Union thereafter requested that the Employer con- tinue to bargain; it replied that contract negotiations should be deferred until the Board ruled upon the decertification petitions. The Regional Director dismissed the decertification petitions as untimely on June 28. The Executive Secretary denied the Em- ployer's appeal as improper on July 10, 1972. Two more bargaining sessions occurred on Septem- ber7and8. On November 7, decertification petition 16-RD-564 regarding the Irving unit was filed. The Employer notified the Union on November 14 that it would be inappropriate to conduct further negotia- tions. The Union generally protested the suspension of bargaining. A hearing was held on December 4. The case was transferred to the Board pursuant to the Board's Rules and Regulations, Section 102.67. On August 3, 1973, a Decision and Order4 was issued dismissing the decertification petition as untimely filed within the certification year. Decertification petition 23-RD-286 was filed with respect to the Angleton terminal on December 19, 1972. On February 13, 1973, decertification petition 16-RD-577 regarding the Duncan terminal was filed. Decertification petition 16-RD-579 regarding the Ardmore unit was filed on February 20. On March 9, decertification petition 16-RD-581 was filed with respect to the Wichita Falls terminal. 2 The voting unit was the same as for Cases 16-RD-577, 16-RD-579, and 16-RD-581. 3 Groendyke Transport, Inc, 181 NLRB 683, 685, enfd. 438 F.2d 981 (C A. 5, 1971), cert. denied 404 U.S. 827 (1971). 4 Groendyke Transport, Inc, 205 NLRB No. 67 207 NLRB No. 44 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, for the following reasons, that the certification year has not yet begun to run with respect to the Duncan, Ardmore; Wichita Falls, and Angleton units and therefore we shall dismiss the decertification petitions as untimely filed. In Groen- dyke Transport, 181 NLRB 683, 685, we ordered the Employer to bargain, upon request, with the Union in each of the five units, and also ordered that the initial year of certification' for each unit shall be deemed to begin on the date the Employer com- mences to bargain with the Union in each appropri- ate unit. After the Union made a demand for bargaining in the five units, the Employer's response indicated a willingness to start bargaining but with respect to only one unit at a time. Since we have ordered that the certification year begins to run from the first day of bargaining and as the record in Case ' 16-RD=564 fails to show that bargaining has begun at the Duncan, Ardmore, Wichita Falls, and Angleton units, we find that the certification year has not yet started at these units and thus the decertification- petitions must be dismissed as untimely 5 Centr-O-Cast & Engineering Company, 100 NLRB 1507; Cleveland Pneumatic Tool Company, 135 NLRB 815. In reply to Member Kennedy's dissent,, we cannot agree that we are deciding an unfair labor practice in the context of a representation case. We are not deciding whether the Employer has bargained in good faith. Rather, we are.deciding that, under the terms of the extant Board and court orders, the relevant certification years have not begun to run, and that, therefore, the decertification petitions in the instant cases must be dismissed as untimely. ORDER It is hereby ordered that the petitions filed herein be, and they hereby are, dismissed. MEMBER KENNEDY, dissenting: I would direct elections in the four units herein. -In my view, the majority impermissibly is deciding unfair labor practice=issues in a representation case. If the Union believed that the Employer was refusing to bargain with respect to the Duncan, Ardmore, Wichita Falls, and Angleton units, it should have pursued its rights by filing 8(a)(5) charges. In fact, the Union did so in the units at two of the terminals. In Case 23-CA-4675, an 8(a)(5) charge at the Angleton terminal was dismissed by the Acting Regional Director on March 2, 1973, and the General Counsel denied the appeal on June 1, 1973. And in Case 16-CA-5018 an 8(a)(5) charge for the Irving terminal was dismissed by the Regional Director on January 17, 1973, and there was no appeal to the General Counsel. Thus, the Union filed two unfair labor practice charges which were found to lack merit, and it is now raising the same issues in these representation proceedings. I would not permit it to do so. All the petitions were filed more than 1 year after the Union's last demand for bargaining in the five units, and an equal amount of time after bargaining began at Irving. I would find the petitions timely filed and direct elections. - Accordingly, I would affirm the-Acting Regional Director's direction of election in Cases 16-RD-577, 16-RD-579, and 16-RD-581 and I would direct an election in Case 23-RD-286. 5 The certification year rule has been approved by the United States Supreme Court in Brooks v. N.LR B., 348 U.S. 96, 104 (1954).