Hackney Corp.

HACKNEY CORPORATION 197 Hackney Corporation and National Union of Long Haul Truckers of America, Petitioner Case 10- RC-10493 May 27, 1976 DECISION ON REVIEW AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On December 10, 1975, the Acting Regional Di- rector for Region 10 issued a Decision and Direction of Election in the above-entitled proceeding in which he found the Petitioner's requested unit of the Employer's long haul truckdrivers may appropriately be severed from an established unit of production and maintenance employees currently represented by the Intervenor, United Steelworkers of America, AFL-CIO Thereafter, in accordance with the Na- tional Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer and the Interve- nor filed timely requests for review of the Acting Re- gional Director's decision By telegraphic order dated January 13, 1976, the National Labor Relations Board granted the requests for review and postponed the election pending deci- sion on 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 case with respect to the issues under review and makes the following findings The Acting Regional Director, applying criteria set forth in Kalamazoo Paper Box Corporation, 136 NLRB 134 (1962), as indicated, found the Employer's long haul truckdrivers could appropriate- ly be severed by the Petitioner from an established broader production and maintenance unit I The Em- ployer and the Intervenor, in their requests for re- view, contend, inter aha, that he erred in limiting his consideration to the severance standards delineated in Kalamazoo, and they urged that in the light of all relevant factors, under Mallinckrodt Chemical Works, Uranium Division, 162 NLRB 387 (1966), severance is inappropriate herein We agree The Employer is engaged in the manufacture and i The Acting Regional Director took note of the contention made by the Employer and the Intervenor that the Petitioner should be disqualified be cause of possible racial motives in its reason for being formed and its pres- ent employee composition, stating that such matters could not be raised at that stage of the proceeding He added that he would not presuppose that the Petitioner, if certified, would engage in prohibited racial discrimination sale of chain wire and fittings at its Columbiana and Birmingham, Alabama, facilities Its long haul truck- ing department, which operates from warehouse fa- cilities in Birmingham, employs approximately 12 long haul truckdrivers to drive vehicles leased from Wilco Truck Lines The drivers receive their load as- signments from a dispatcher at the warehouse and pick up their loads either there or at a staging area at Wilco's location Upon completion of a haul, they leave their documents and the vehicles at the ware- house When picking up their loaded vehicles at the warehouse, the drivers check to see that the load is properly secured, but do no loading or unloading They are under a separate supervisor who reports to the distribution manager Except for one instance when a driver whose license was suspended was reas- signed to plant work, there is no interchange between drivers and other employees The drivers are paid on a mileage basis with provision for layover and wait- ing time pay, they have the same fringe benefits as other employees Since 1969, the Employer's truckdrivers have been represented by the Intervenor as part of a certified unit described as "all production and maintenance employees and truckdrivers of the Employer in- cluding leadmen and shipping and receiving employ- ees " 2 Earlier, in 1965, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Teamsters, had been certified as representative of a separate unit of truckdrivers 3 but was unsuccessful in negotiating an agreement with the Employer In 1966, the Teamsters lost an election among the drivers, and was decerti- fied 4 The Employer and the Intervenor have negotiated two 3-year contracts covering the certified broad unit, the second of which expired on September 30, 1975, prior to completion of negotiations for a new agreement Past contracts have included provisions relating to the special interests of the truckdrivers in the long haul trucking department, and individual truckdrivers have represented those interests on the Intervenor's negotiating committees Under those contracts, as indicated, drivers were paid on a mile- age basis and received payments for layover and/or waiting time, they were provided the same fringe benefits as other unit employees Also, those con- tracts provided for departmental seniority However, in view of the absence of any black employees in the long haul trucking department and the predomi- nance of black employees in other departments, the Intervenor in its negotiations for a new contract took 2 Case IO-RC-7458 3 Case IO-RC-6401 4Case 10-RM-451 224 NLRB No 42 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the position that a plantwide seniority system should be provided so that qualified blacks with the greatest plantwide seniority could bid for truckdriver jobs as they became available, and the Employer has agreed to such a provision The Employer asserts that this agreement was in response to recent court cases find- ing that parties to collective-bargaining agreements had perpetuated past discrimination against minority employees not hired in truckdriver jobs through the operation of departmental seniority systems 5 Despite the agreement on seniority, disagreements remained on other issues, and, upon expiration of the prior contract, the Intervenor initiated a strike in support of the demands On October 9, 1975, the Pe- titioner was formed There was testimony that the truckdrivers had met in May 1975 and decided to "go independent" but later decided to give the In- tervenor "a try again", also, that when the Petitioner was formed the truckdrivers were aware of the agree- ment to implement plantwide seniority Upon our review of the entire record, we are not persuaded that the Employer's long haul truckdrivers have overriding separate special interests to warrant their severance from the established broader unit, in the circumstances and facts of this case It is true, and we note, that the drivers here in- volved devote most of their time to over-the-road driving duties, are under separate immediate supervi- sion, and do not interchange with employees working in the warehouse and plant However, in Mallinck- 5 Citing Rodriguez v East Texas Motor Freight, 505 F 2d 40 (C A 5 1974), Herrera v Yellow Freight Systems Inc 505 F 2d 66 (C A 5 1974) Resendis v Lee Way Motor Freight Inc, 505 F 2d 69 (C A 5 1974) Hair ston v McLean Trucking Company 520 F 2d 226 (C A 6 1975) US v Navajo Freight Lines Inc 525 F 2d 1318 (C A 9, 1975) rodt, the Board set forth a number of other factors which must be considered in determining whether or not the history of bargaining precludes severance We think it is significant that in 1966, after a brief period of representation by the Teamsters, the Employer's truckdrivers voted to decertify that union, thereby rejecting the separate representation that had theretofore existed Also, until the current negotiations, there is no suggestion in the record that the truckdrivers have not heretofore been adequately represented by the Intervenor as part of a production and maintenance unit or that the bargaining history has not been otherwise a satisfactory and stable one As to the indication of current discontent among the truckdrivers which apparently led to the Petitioner's formation and its filing of the instant petition, it is not entirely clear whether the discontent was brought about by the agreement to implement plantwide se- niority, a change which may affect some of them ad- versely in the future, or by other bargaining positions taken by the Intervenor Whatever the case, we do not deem this evidence of current dissatisfaction with the Intervenor's representation of the truckdrivers to be sufficient to support the Petitioner's severance re- quest at this time Accordingly, we shall dismiss the petition herein 6 ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed 61n reaching our conclusion to deny severance herein we need not and do not pass on the contention of the Employer that the actions of the truckdrivers leading to the Petitioners formation and the filing of the in stant petition were racially motivated