Miller Bros., Inc.

MILLER BROS., INC. 127 Miller Bros., Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local No. 17. Case 27-RM-417 April 18, 1974 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Douglas R. Hjelle. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 27, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer and the Union 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 authority in this proceeding 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. The Board has considered the entire record in this case and makes the following findings: 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 labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. The Employer, an intrastate truckline, petitioned for an election to be conducted among its employees in a unit of truckdrivers and casual employees at its facilities in six Colorado cities. Local 17 contends that this single-employer multiterminal unit is inap- propriate because the Employer is a member of a national multiemployer/multiunion bargaining unit as a result of its adoption in 1970 of the National Master Freight Agreement and the Western States Area Pick-up Delivery Local Cartage and Dock Workers Supplemental Agreement. Local 17 specifi- cally points to article 2, section 4, of the National Master Freight Agreement which purports to estab- lish such multiemployer/multiunion unit, and article 31 of that agreement which declares that all parties agree to become part of the multiemployer/multiun- ion bargaining unit and to remain in such unit if a renewed or modified agreement is negotiated.' Accordingly, the Union argues, the petition should be dismissed because the only appropriate unit would be the national multiemployer/multiunion unit and the new contract negotiated in July 1973 by the multiemployer/multiunion unit constitutes a bar to the Employer's petition since that contract will not expire until March 31, 1976.2 The Employer argues that it never became part of a multiemployer unit, has never participated in negotiations on a national basis, and has only bargained on an individual basis with Local 17. We find it unnecessary to determine whether the language of the 1970 National Master Freight Agreement should be given the interpretation suggested by Local 17 since, in any event, we would find that even if the Employer had at one time bound itself thereby to a multiemployer/multiunion bar- gaining unit, it effectively withdrew from such a unit and that the parties thereafter bargained only with respect to the unit composed of the Employer's employees. On March 13, 1973, the Union requested negotia- tions on revisions to the 1970 contract. The Employ- er responded on March 21 by invoking the 60-day notice provision of article 39, section 1, of the 1970 agreement, thereby notifying the Union of its intention to terminate the agreement as of June 30, 1973. The Union's secretary-treasurer, Henry Estra- da, testified that the Employer's invocation of article 39, section 1, was the only available procedure that he was aware of by which the Employer could have withdrawn from the multiemployer/multiunion unit. In a subsequent meeting between the Employer and Local 17 in May 1973, the Employer declared that it could no longer live with the National Master Freight Agreement and emphasized the need to commence bargaining on a new contract without waiting for a new national agreement to be reached. Thereafter, the parties held three bargaining sessions 1 These provisions in pertinent part read: Article 2, Section 4 The employees, unions, employers and associations covered under this Master Agreement and the various Supplements thereto shall constitute one bargaining unit ... and the printing . in separate Agreements is not intended to create separate bargaining units Accordingly, the Associations and employers, parties to this Agree- ment, acknowledge that they constitute a single National multi- employer collective bargaining unit ... . Article 31 The parties further agree to participate in joint negotiations of any modification or renewal of this National Master Agreement and Supplements thereto and to remain a part of the multi-employer, multi- union bargaining unit set forth in such renewed Agreement and Supplements. 2 The Union does not, however, contend that it does not seek to represent the Employers employees in a separate unit if the Board rejects the Union's position. 210 NLRB No. 26 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in August 1973 at which their discussions were restricted to this single-employer unit. Local 17 never claimed at any of these sessions that the Employer was part of a multiemployer bargaining unit nor that it considered the Employer to be bound by the provisions of the National Master Freight Agreement and Supplements which had been negotiated in July 1973 for the multiemployer/multiunion unit. Rather, the union representatives merely stated that they "hoped" that the Employer would sign the 1973 National Master Freight Agreement when they presented the new national contract to the Employer. The individual nature of these negotiations was further evidenced by the negotiations over the Employer's claim of financial hardship as the reason for its inability to adopt the terms of the national contracts; as a result, the Employer allowed an audit of its books by Local 17's accountant to substantiate its claim. In our view, no matter what effect we might otherwise give to the unit clauses in the 1970 agreement, the actions of Local 17 and the Employer here in the course of the 1973 negotiations were inconsistent with the concept of multiemployer/mul- tiunion bargaining and evidenced an intent on their part to pursue collective bargaining on a local basis without regard to any further agreement or practices with respect to the larger unit. Accordingly, we find that the National Master Freight Agreement is not a bar to this proceeding. 4. In view of the conclusion above, we find that the single-employer multiterminal unit requested in the Employer's petition is appropriate. The Employer contends that the unit should include all of its truckdrivers and "casual employ- ees." The Union refers the Board to the 1970 contract to determine which employees should be considered regular part -time employees under Board standards.3 The casual employees regularly perform the same work as the truckdrivers at four of the Employer's six terminals and consistently work from 8 to 25 hours per week. Additionally, when there are fluctuations in the workload , these employees remain on an on-call basis. Thus, although denominated casual employees in the Employer's petition, we find that these individuals are regular part-time employ- ees, and shall include them in the appropriate unit. Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All truckdrivers and regular part-time employees of Miller Bros., Inc. located at Denver, Greeley, Fort Collins, Loveland, Longmont, and Estes Park, Colorado, but excluding all office clerical employees, salesmen, guards, professional em- ployees, mechanics, and supervisors as defined by the Act. [Direction of Election and Excelsior footnote omitted from publication.] 3 Examination of the 1970 contract leaves us with insufficient basis for to their meaning and application. relying on its ambiguous terms, in the absence of explanatory testimony as