Ringsby-United

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ringsby Truck Lines, Incorporated and United Buck- ingham Freight Line Inc., d/b/a Ringsby-United and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Local No. 307, Petitioner. Case 27-RC-4689 June 10, 1974 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a petition duly filed on December 27, 1973, under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held at Cheyenne, Wyoming, on January 24, 1974, before Merrell M. McLaughlin,, Hearing Officer.' Following the hear- ing 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. 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. Upon the entire record in this case,2 the Board finds: 1. The Employer is Ringsby Truck Lines, Inc., a Nebraska corporation, and United Buckingham Freight Line, Inc., a South Dakota corporation, jointly doing business as Ringsby-United. The Employer is engaged in the transcontinental trans- portation of commercial freight and annually re- ceives revenues in excess of $80,000,000 from such interstate transportation of goods. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act. We further find that it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concern- I The International Association of Machinists and Aerospace Workers, AFL-CIO, intervened on the basis of its contract with the Employer. 2 Pursuant to motions made by both Petitioner and Intervenor, which the Employer did not oppose, the Board hereby takes official notice of the records in Cases 27-RC-4453, 27-CA-3543, and 27-RC-4329, involving the same parties as here, and has considered them in reaching its decision in this case. 3 Petitioner indicated at the hearing in Case 27-RC-4453 that it would 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. Both Petitioner and Intervenor have current collective-bargaining agreements with the Employer. (The bargaining history of the parties is discussed below.) Intervenor contends that the approximately seven mechanics at the Employer's recently expand- ed operations at Cheyenne, Wyoming, constitute an accretion to its contractual unit, and that conse- quently its outstanding contract is a bar to the present petition. Petitioner's position appears to be that the Cheyenne mechanics are not an accretion to the Intervenor's contractual unit, that they constitute an appropriate unit by themselves,3 and that the employees should be allowed to select their collec- tive-bargaining representative through a Board-con- ducted election. The Employer's position on the appropriateness of the petitioned-for unit is unclear from the record. Since 1962, Intervenor has negotiated successive contracts with the Western Empire Operators Associ- ation, of which the Employer is a member, covering a unit of mechanics in 11 western States including Colorado and Wyoming.4 Until the Employer expanded the Cheyenne terminal in 1972, the only mechanics the Employer had in the 11-state area covered by the agreement were located at a facility the Employer operated at Denver, Colorado. Interve- nor's contract contains an accretion clause, provid- ing, in relevant part, that the contract applies to "all accretions to the bargaining unit, including, but not limited to, newly established or acquired shops, and the consolidation of shops in the geographical area are covered by this Agreement." Petitioner has also had successive collective-bar- gaining agreements with the Employer in the same 11-state area, covering over-the-road and local drivers, automotive shop service and parts employ- ees, dockhands, and hostlers. Sister locals of the Petitioner also represent some mechanics of this Employer outside the 11-state area, at such places as Rapid City, South Dakota; Sioux City, Iowa; and the Omaha/Lincoln area of Nebraska. Petitioner does not contend that the mechanics at Cheyenne are an accretion to any of its contractual units. Prior to 1971, the Employer had approximately 200 to 250 drivers operating out of Denver as "sleeper- teams" with 2 men working together, and approxi- be willing to represent the mechanics in a unit which included the automotive shop service employees at Cheyenne. 4 The agreement specifically excludes mechanics who are represented by other unions or who have not designated a local of the Intervenor as their representative, and the record shows that there are at least some mechanics in the 11-state area-albeit, none employed by this Employer-who are for those reasons not covered by the agreement. 211 NLRB No. 33 RINGSBY-UNITED 281 mately 45 mechanics servicing their equipment who were covered by the Intervenor's contract. However, in January of that year, the Employer converted its Denver terminal , to a one-man operation and redomiciled all but 36 of the drivers to other locations throughout its nationwide system, includ- ing Albuquerque, New Mexico; Rawlins, Wyoming; Lincoln, Nebraska; and Salt Lake City, Utah.5 At the same time, the Employer began laying off mechanics in Denver. In January 1972, the Employer decided to expand its Cheyenne, Wyoming, terminal into a central transcontinental break-bulk facility. Consequently, in April of that year, the Employer implemented another change of operations. It was during this change of operations that Ringsby Truck Lines, Inc., combined its road operations with United-Bucking- ham Freight Lines, Inc., to become Ringsby-United. The Employer again redomiciled drivers. It closed down entirely 2 terminals, reduced its Denver terminal from 36 to 4 drivers, laid off at least another 15 mechanics, and assigned additional drivers to some of its other terminals, increasing substantially those assigned to Cheyennes At Cheyenne, the Employer hired two mechanics and began construc- tion of a large maintenance building designed to maintain and repair the equipment being transferred in from other terminals. By early 1973, the maintenance building had been completed and the Employer placed into effect yet another change in operations which resulted in still more drivers being assigned to the Cheyenne terminal from other locations.? Meanwhile, the Employer continued to increase its complement of mechanics and automotive shop service employees, so that by the time of the hearing in this case, the Employer had 7 mechanics 8 and 30 to 35 automotive shop service employees at Cheyenne .9 The record shows that the repair work being performed by the mechanics originated from such places as Albuquer- que, New Mexico; Sioux City, Iowa; Rapid City, North Dakota; Des Moines, Iowa, as well as from Denver.10 Prior to the expansion of the Cheyenne terminal, major repair work was being performed at Denver and Rapid City, but after implementation of the various changes in operations, only routine S The Employer's senior vice president for industrial relations , J. Francis Trimmer, testified that none of the drivers were transferred to Cheyenne during the 1971 change of operations. 9 Trimmer testified that prior to the April 1972 change of operations, it had 36 tractor units in Denver, 25 in Kansas City, 15 in Albuquerque, 60 in Rapid City. From these terminals, 26 units were transferred to Cheyenne (The record does not indicate how many units came from each location.) I Trimmer testified that 4 of the tractor units came from Denver, 38 from Sioux City, and 51 from Rapid City. 8 Trimmer testified that none of the mechanics came from its Denver terminal (which by this time had only one mechanic on active status), but that two had previously worked for the Employer at other terminals outside maintenance was being performed at these locations while the bulk of major. repairs was performed in Cheyenne. As noted above, in February 1972, even before it began construction of its maintenance building at Cheyenne, the Employer hired two mechanics to perform some of the repair work that would eventually be performed in the new building.11 Shortly thereafter, the Petitioner requested that the Employer recognize it as representative of these employees. The Employer agreed and a tentative contract was signed and submitted to the Joint Teamster-Employer Operational Change Committee for approval. However, on April 25, the Intervenor filed an unfair labor practice charge against the Employer in Case 27-CA-3543, charging it with violations of Section 8(a)(5) and 8(a)(2) of the Act. The Regional Director refused to issue a complaint on the 8(a)(5) charge, and eventually approved a settlement of the 8(a)(2) charge, which required the Employer, among other things, to withdraw recogni- tion of the Petitioner, and reimburse the employees for the amount of the dues paid by them. Intervenor appealed the Regional Director's dismissal of the 8(a)(5) charge to the General Counsel's Office of Appeals. That office, however, upheld the Regional Director's dismissal. At the same time that the parties were contesting the 8(a)(2) and (5) charges, as described above, Intervenor was also proceeding through its contrac- tual avenues. It first took its accretion contention to the Teamster-Machinists Joint Automotive Commit- tee, which is responsible for interpreting a "no-raid" agreement between the two organizations. A meeting of that committee was held on March 22, 1972. The minutes of that meeting indicate that the committee was in agreement with Intervenor's assertion that the Cheyenne facility was within the jurisdiction of the Intervenor. Thereafter, Intervenor presented its accretion contention to the Colorado Board of Adjustment. That forum is responsible for interpreting the agreement between the Intervenor and the Western Empire Operators Association for the States of Colorado and Wyoming, and is composed of three union representatives and three association repre- the 11-state area covered by Intervenor's contract. He further testified that he did not think that the number of mechanics employed at Cheyenne would substantially increase in the immediate future. 9 The Employer and Petitioner agreed that these automotive shop service employees were an accretion to Petitioner's unit, and applied the contract to them. The date of the Employer's recognition was not indicated in the record. 10 The record does not indicate how much or what percentage of the equipment eventually transferred to Cheyenne originated from Denver. 11 Prior to 1972, some of the mechanics ' work had been subcontracted out to local repair shops in the Cheyenne area. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives. In an undated decision, the Colorado Board of Adjustment unanimously found the Em- ployer to have violated the accretion provision of the contract, concluding that the Cheyenne maintenance shop was within the jurisdiction of the Intervenor and subject to its agreement with the Association.12 Finally, it appears that Intervenor also filed an action in Federal district court in Denver, Colorado, under Section 301 of the Act for specific perform- ance of its contract with the Employer and of the decision issued by the Colorado Board of Adjust- ment interpreting that contract. The record does not indicate the current status of that proceeding. With regard to the terms and conditions of employment of the Cheyenne mechanics, the record establishes that all seven mechanics work in the new maintenance shop, where they perform major repair work using the skills of a journeyman mechanic. Working in the same building with the mechanics are: 30 to 35 automotive service shop employees, who perform routine maintenance work such as changing tires and lubricating the equipment; 2 parts men who work in a separate room where they maintain the inventory of parts which they supply to the mechanics and automotive shop service employ- ees; a plant clerical and an administrative employee in a separate office; and 5 foremen and the shop superintendent who supervise the work of all employees in the shop. As noted above, Petitioner represents all of the automotive shop service and parts employees at the Employer's Cheyenne facility. In fact, it appears that Petitioner represents all the employees at that location except the mechanics petitioned for here, and the office clericals who are currently represented by another union. Intervenor appears to contend that, as a result of the Employer's transfer of drivers, equipment, and repair machinery from Denver to Cheyenne, the Cheyenne mechanics are performing some of the same work, and using the same tools, on some of the same equipment that had previously been performed by the mechanics it represented in Denver; that its contract with the Employer clearly covers mechanics at the Cheyenne location;13 and, that therefore, the Board should find that these employees are an accretion to the Intervenor's 12 It also indicated , however, that it would "continue to hold jurisdic- tion" since the issue was at that time still under consideration by the General Counsel's office in Case 27-CA-3543. 13 Intervenor appears additionally to contend that the Board should defer to the arbitration award issued by the Colorado Board of Adjustment, finding the Cheyenne mechanics to be an accretion to Intervenor's contract. However, the Board has not made it a practice to defer to arbitration awards which purport to decide representation issues-as opposed to questions of contract interpretation-especially where, as here, not all the parties were bound by the arbitrator's award or participated in the arbitration proceeding. Warm Springs Lumber Co., Inc., 181 NLRB 600; Crown Cork & Seal Company, Inc., 203 NLRB No. 29. contractual unit, and that its outstanding contract with the Employer is a bar to the present petition. In determining whether a new group of employees constitutes an accretion to an existing contractual unit, the Board has traditionally looked to factors indicative of whether the new employees could constitute an appropriate unit by themselves, or could only be properly represented in the contractual unit. If the employees sought to be accreted constitute an appropriate unit by themselves, it is the Board's practice to find no accretion and to allow the employees affected the opportunity to choose their collective-bargaining representative through a Board-conducted election.14 From a review of the facts set forth above, we conclude that the Cheyenne mechanics do not constitute an accretion to Intervenor's contractual unit. In so finding, we rely on the following: (1) The absence of evidence in the record of any similarity of terms and conditions of employment, transfer or interchange, or even of any contact between the Employer's mechanics within the 11-state area covered by Intervenor's contract, (2) Denver is the nearest location of mechanics represented by In- tervenor and is over 100 miles distant from Chey- enne, and (3) there is no evidence that separate representation would be disruptive of existing bar- gaining relationships, especially since the record shows that some mechanics at other locations of the Employer outside the 11-state contract area, and mechanics employed by other employers within the 11-state area, are represented by other unions or are not represented. We recognize that the skills and functions of the Cheyenne mechanics are similar to those of the employees covered in Intervenor's contractual unit, and that some of the work and equipment of the Cheyenne mechanics originated from the Denver location represented by Intervenor-and that these factors arguably favor a finding of accretion. However, as to the former, beyond the bare fact that the work is similar, there is no evidence on the record of any community of interest between the Cheyenne mechanics and those in the contractual unit. As to the latter, the record makes it clear that the Employer's relocation of drivers and work to 14 As the Board said in Melbet Jewelry Co., Inc., and I.D.S.Orchard Park, Inc., 180 NLRB 107 at 110: Under certain circumstances, we might have found an overall unit appropriate, and thereupon given all the employees in the three stores an equal voice in determining their bargaining representative . We will not, however, under the guise of accretion , compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing those employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to represent them. RINGSBY-UNITED 283 Cheyenne was not merely a transfer of unit work from one location to another location in the unit. Instead, the record establishes that the Employer made a basic change in the organization of its operations for economic reasons which resulted in drivers being redomiciled to several locations within and without the 11-state area covered by Intervenor's contract. Thus, while some of the repair work at Cheyenne could be said to have originated from Denver, the record established that a substantial amount also originated from other locations, such as Rapid City, North Dakota (where the mechanics are represented by the Petitioner), which are outside the 11-state area covered by Intervenor's agreement. Under all of the circumstances, therefore, we conclude that there is not present here sufficient justification for finding these employees to be an accretion to Intervenor's contractual unit, thereby imposing representation on these employees not of their own choosing.15 Turning next to the appropriateness of the unit petitioned for here, we find the Cheyenne mechanics do share considerable interests with the automotive shop service and parts employees represented by Petitioner. Thus, they work in the same building, have common supervision, and use the same parts room. Further, the record shows that on occasion they assist each other in performing their respective work. Finally, the very nature of their work is related, the only difference being that the automotive shop service employees perform less complex mainte- nance-type work than that performed by the me- chanics. Consequently, and because the mechanics are the only unrepresented shop employees at the Employer's maintenance facility in Cheyenne, and their work is similar in nature to that of the automotive shop service and parts employees pres- ently represented by Petitioner, we find the mechan- ics constitute an appropriate residual unit to the automotive shop service and parts employees at Cheyenne.16 4. Based upon the foregoing and the entire record herein we find that the following employees of the Employer may constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All mechanics employed by Ringsby-United at its Cheyenne, Wyoming, shop, excluding all other employees and supervisors within the meaning of the Act. If a majority of the employees in the voting group cast their ballots for the Petitioner, they will be taken to have indicated their desire to be included in the existing multiemployer unit covered by the Western States Automotive Supplement to the Master Freight Agreement, and the Regional Director is instructed to issue a certification to this effect. In the event that a majority of the valid ballots are cast for the Intervenor,17 the employees will be deemed to have indicated their desire to be represented by the International Association of Machinists and Aero- space Workers, AFL-CIO, in a separate, single- location, unit, and the Regional Director shall then issue a certification to that effect. If the majority of the employees in the voting group cast their ballots for neither of the above-named labor organizations, they will be taken to have indicated their desire to remain unrepresented, and the Regional Director shall issue a Certification of Results of Election. [Direction of Election and Excelsior footnote omitted from publication.] 15 Pilot Freight Carriers, Inc., 208 NLRB No. 138. Election the Intervenor in writing to the Regional Director requests leave to 16 The Halle Brothers Company, 193 NLRB 993 . withdraw from the ballot, the Regional Director is authorized to grant such 17 If within 5 days after the issuance of this Decision and Direction of request and revise the ballot accordingly.