Capp Express, Inc.

816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Capp Express, Inc. and Fraternal Association of Spe- cial Haulers, Local Union 100, Petitioner. Case 6-RC-7118 September 26, 1975 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On April 8, 1975, the Regional Director for Region 6 issued a Decision and Order in the above-entitled proceeding in which he dismissed the petition seek- ing an election in a unit limited to the truckdrivers of the Employer's steel division. In accordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision, contending that the Re- gional Director had made findings of fact which were clearly erroneous and had departed from officially reported Board precedent.' By telegraphic order dated June 9, 1975, the Board granted the request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding with respect to the issues under review and makes the following findings. The Petitioner seeks to represent a unit limited to the four owner-operator truckdrivers who comprise the Employer's steel division drivers.2 In dismissing the petition the Regional Director concluded that the employees sought did not constitute a functionally distinct group apart from the Employer's freight drivers presently represented by Local 249. For the following reasons, we disagree with the conclusion of the Regional Director. The Employer, a Pennsylvania trucking corpora- tion, maintains freight terminals at Pittsburgh and Charleroi, Pennsylvania, and also rents space which is used for dispatching the four steel division drivers involved herein at the Library, Pennsylvania, home of Jim McGee, the supervisor of the Pittsburgh and Charleroi terminals. 1 The General Teamsters, Chauffeurs and Helpers Local 249, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, which represents the Employer's freight drivers, was permit- ted to intervene at the hearing on the basis of a colorable contractual interest 2 The parties stipulated that the owner-operators were employees. The Employer began operations at the Pittsburgh and Charleroi terminals during February and March 1974, after purchasing the operating rights of the Capp Trucking Company and hiring a number of Capp's former drivers. Between March and July 1974, the Employer exclusively hauled freight, which included less than full truckloads of steel, i.e., loads that weighed less than 25,000 pounds' The freight division employs 9 or 10 drivers who are represented by Local 249. These drivers report to the Pittsburgh and Charleroi terminals and operate only company-owned trucks. The Employer's con- tract with Local 249 guarantees a 40-hour week to a certain percentage of the freight drivers whom the Employer requests to report to the terminals at the beginning of each week. The contract also provides the freight drivers with health, pension, and life in- surance benefits. In July 1974, the Employer decided to accept or- ders for hauling full truckloads of steel, i.e., loads that weighed more than-25,000 pounds. To provide this type of service, the Employer hired the four own- er-operators sought herein who comprise its steel di- vision complement. From July until February 18, 1975, Jim McGee dispatched these owner-operators from the Pittsburgh terminal.' Since February 18, 1975, these drivers have been dispatched by tele- phone from McGee's Library home, approximately 15 miles from the Pittsburgh terminal; they do not personally report to the Library location for assign- ments. McGee's wife is responsible for dispatching the owner-operators from Monday through Friday, however she has no authority to hire, fire, or disci- pline any of them. Jim McGee and Employer's presi- dent, Hammel, handle those personnel matters, as well as the owner-operators' grievances. Unlike the freight drivers, the owner-operators are paid a percentage of the charges the Employer bills the shipper and they do not receive any health, pen- sion, or life insurance benefits or guaranteed mini- mum income per week. Although, as found by the Regional Director, Jim McGee supervises both the steel and freight division drivers, the record indicates that since the steel division's operations began, the owner-operators have not had any contact with the freight division drivers and there has not been any interchange of assignments between them. In addi- tion, the record discloses that separate seniority lists are maintained for the drivers of each division. Considering the geographic separation of the steel division drivers from the freight drivers, the different 3 The Employer's president testified that less than full truckloads of steel were considered freight. During the period from July 1974 through February 18, 1975, the own- er-operators did not report to the Pittsburgh terminal but were dispatched by telephone. 220 NLRB No. 127 CAPP EXPRESS, INC. dispatching arrangements for the two groups, the lack of any contact or interchange between them, the differences in the terms and conditions of their em- ployment, including the maintenance of separate se- niority lists, we conclude that the steel division driv- ers dispatched from the Library, Pennsylvania, location comprise a distinct group, sharing a commu- nity of interest among themselves which differs from that of the freight drivers, and therefore constitute a separate appropriate bargaining unit.' 3 In view of this finding , we conclude that the steel division does not constitute an accretion to the unit of freight drivers as urged by Local 249, and, therefore, the current collective-bargaining agreement between Local 249 and the Employer is not a bar to the present petition . Beacon Photo Services, Inc., 163 NLRB 706 (1967). Furthermore, as Local 249's contract does not cover any of the truckdnvers in the requested unit found herein, and as we have been administratively advised that Local 249 has not pre- sented any other valid showing of interest among these employees, it will not be accorded a place on the ballot in the election directed below. Alpha Corporation of Texas, 130 NLRB 1292, 1294 (1961). 817 We therefore find that a question- affecting com- merce exists concerning 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, and that the following employees of the Employer constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All steel division drivers dispatched out of the Employer's Library, Pennsylvania, location, ex- cluding trip-lease drivers, office clerical employ- ees, guards, professional employees, and super- visors as defined in the Act. [Direction of Election 6 and Excelsior footnote omitted from publication.] 6 Local 249's record request that further consideration of the petition be postponed pending arbitration of a grievance regarding the Employer's ini- tial assignment of the owner-operators to the steel division is denied. The grievance involves a different issue from that raised here.