Memphis Furniture Manufacturing Co.

MEMPHIS FURNITURE MANUFACTURING CO. 401 Memphis Furniture Manufacturing Co. and Mem- for severance from the existing overall bargaining phis Truckers Association, Petitioner. Case 26- unit. We find no merit in the Intervenor's positions. RC-6180 The Employer is a manufacturer of furniture lo- cated in Memphis, Tennessee, employing approxi- November 27, 1981 mately 1,000 employees. The Intervenor was certi- DECISION AND DIRECTION OF fled in 1978 to represent an overall bargaining unit ELECTION including all production and maintenance employ- ees and local and over-the-road truckdrivers. As in- BY MEMBERS FANNING, JENKINS, AND dicated above, the initial collective-bargaining ZIMMERMAN agreement expired as of March 12, 1980. At the . .a . dy fd u S o time of hearing it did not appear that a new con- Upon a petition duly filed under Section 9(c) of tract had been executed 2 the National Labor Relations Act, as amended, a Employer employs 16 over-the-road truck- hearing was held on August 27, 1980, before Hear- e h e er furnitur e ma ctured by t ing Officer Melvin L. Ford. Following the hearing, Employer. These truckdrivers are dispatched from this case was transferred to the National Labor Re- t trk shop, located several blocks from the lations Board in Washington, D.C., for decision, Employer's manufacturing plant and warehouse. pursuant to Section 102.67 of the National Labor Truckdrivers spend 95 percent of their time away Relations Board Rules and Regulations and State- from the plant, do no plant work, do not load their ments of Procedure, Series 8, as amended. Thereaf- rucks, have no contact with production and main- ter, the Petitioner and the Intervenor' filed briefs. te c employees, and have only occasional con- tenance employees, and have only occasional con- Pursuant to the provisions of Section 3(b) of the tact with truck shop mechanics. Their hours differ National Labor Relations Act, as amended, the Na- from those of production and maintenance employ- tional Labor Relations Board has delegated its au- ees and they are not supervised by production and thority in this proceeding to a three-member panel. maintenance supervisors. They are generally dis- The Hearing Officer's rulings made at the hear- patched by telephone and come to the truck shop ing are free from prejudicial error and are hereby to pick up their loads, choosing from the available affirmed. bills of lading laid out for their inspection. Over- Upon the entire record in this case, including the the-road truckdrivers are paid by mileage, whereas briefs, the Board finds: production and maintenance employees, including 1. The Employer is engaged in commerce within local drivers and "city switchmen," are paid the meaning of the Act and it will effectuate the hourly. Unlike local drivers, over-the-road truck- purposes of the Act to assert jurisdiction herein. drivers are subject to regulations of the Depart- 2. The labor organizations involved claim to rep- ment of Transportation, including required physical resent certain employees of the Employer. examinations and limits on the amount of time de- 3. A question affecting commerce exists concern- voted to driving within a given period. Based on ing the representation of employees of the Employ- the foregoing factors, we find that over-the-road er within the meaning of Section 9(c)(l) and Sec- truckdrivers employed by the Employer constitute tion 2(6) and (7) of the Act. a homogeneous, functionally distinct group such as 4. The Petitioner, by petition of March 13, 1980, the Board has traditionally accorded the right of seeks to sever from the existing production and self-determination, notwithstanding a history of maintenance unit currently represented by the In- bargaining on a broader basis. See Wright City Dis- tervenor a unit of over-the-road truckdrivers of the play Manufacturing Company, a Subsidiary of Per- Employer. The Intervenor opposes the requested maneer Corporation (Delaware), 183 NLRB 881 severance on several grounds: First, that the Peti- (1970); Downington Paper Co., a Division of Sonoco tioner is not a labor organization within the mean- Products Company, 192 NLRB 310 (1971). 3 ing of the Act; second, that the Petitioner should not be certified as representative because it would In its brief dated September 18. 1980. the Intervenor contends that the parties are abiding by an unsigned contract covering the certified unit discriminate against black employees and perpetu- including over-the-road truckdrivers. ate unlawful privileges of white employees; and, 3 We would distinguish the cases cited by the Intervenor: Rockingham third, that the unit sought is not an appropriate unit PO" y Marketing Cooperative, Inc., 174 NLRB 1278 (1969), where the ird, tat te unit sg i not an appropriate unit over-the-road drivers performed in substantial respects duties similar to those of other drivers not sought, were at times transferred to production United Furniture Workers of America Local 282, AFL-CIO, herein jobs, and in some instances were subject to common supervision, and Los the Intervenor, was permitted to intervene on the basis of its contractual Angeles Herald-Examiner. Division of the Hearst Corporation, 200 NLRB representation pursuant to certification of a unit of the Employer's em- 475 (1972), which involved a unit of local drivers in the circulation de- ployees, including over-the-road truckdrivers. An initial contract expired partment found to have a clear history of bargaining on a broader basis as of March 12, 1980, and the parties have stipulated that there is no con- despite a period of separate representation pursuant to a stipulated con- tract bar to this proceeding to sever over-the-road truckdrivers. sent election. 259 NLRB No. 61 MEMPHIS FURNITURE MANUFACTURING CO. 401 Memphis Furniture Manufacturing Co. and Mem- for severance from the existing overall bargaining phis Truckers Association, Petitioner. Case 26- unit. We find no merit in the Intervenor's positions. RC-6180 The Employer is a manufacturer of furniture lo- Novem ber 27, 1981 cated in Memphis, Tennessee, employing approxi- mately 1,000 employees. The Intervenor was certi- DECISION AND DIRECTION OF fl e d in 1978 t o represent an overall bargaining unit ELECTION including all production and maintenance employ- ees and local and over-the-road truckdrivers. As in- BY MEMBERS FANNING, JENKINS, AND dicated above, the initial collective-bargaining ZIMMERMAN agreement expired as of March 12, 1980. At the Upon a . petition duly filed under Section 9) of ntim e of hearing it did not appear that a new con- Upon a petition duly filed under Section 9(c) of „at a been executed 2 the National Labor Relations Act, as amended, a tac had bn e d. the Ntionl Laor Rlatios Ac as mendd, a Employer employs 16 over-the-road truck- hearing was held on August 27, 1980, before Hear- T E p ly1 oet ed tuk ing ffier elvn L.For. Flloing he earng, drivers, who deliver furniture manufactured by the ing Officer Melvmn L. Ford. Followmg the hearing, Employer. These truckdrivers are dispatched from this case was transferred to the National Labor Re- E . These locadrsveral blocks from latins oardin ashigto, D.., or dcison, the "truck shop," located several blocks from the lations Board St Washingtonf D.Ct i for decision,r Employer's manufacturing plant and warehouse. pursuant to Section 102.67 of the National Labor Truckdrivers spend 95 percent of their time away Relations Board Rules and Regulations and State- Tudom the plant, do no plant work, do not load their ments of Procedure, Series 8, as amended. Thereaf- from he no nontant with doctio ad thir ter, the Petitioner and the Intervenor' filed briefs. trucks, have only octional con- tenance employees, and have only occasional con- Pursuant to the provisions of Section 3(b) of the tact with truck shop mechanics. Their hours differ National Labor Relations Act, as amended, the Na- from those of production and maintenance employ- tional Labor Relations Board has delegated its au- ees and they are not supervised by production and thority in this proceeding to a three-member panel. maintenance supervisors. They are generally dis- The Hearing Officer's rulings made at the hear- patched by telephone and come to the truck shop ing are free from prejudicial error and are hereby to pick up their loads, choosing from the available affirmed. bills of lading laid out for their inspection. Over- Upon the entire record in this case, including the the-road truckdrivers are paid by mileage, whereas briefs, the Board finds: production and maintenance employees, including 1. The Employer is engaged in commerce within local drivers and "city switchmen," are paid the meaning of the Act and it will effectuate the hourly. Unlike local drivers, over-the-road truck- purposes of the Act to assert jurisdiction herein. drivers are subject to regulations of the Depart- 2. The labor organizations involved claim to rep- ment of Transportation, including required physical resent certain employees of the Employer. examinations and limits on the amount of time de- 3. A question affecting commerce exists concern- voted to driving within a given period. Based on ing the representation of employees of the Employ- the foregoing factors, we find that over-the-road er within the meaning of Section 9(c)(l) and Sec- truckdrivers employed by the Employer constitute tion 2(6) and (7) of the Act. a homogeneous, functionally distinct group such as 4. The Petitioner, by petition of March 13, 1980, the Board has traditionally accorded the right of seeks to sever from the existing production and self-determination, notwithstanding a history of maintenance unit currently represented by the In- bargaining on a broader basis. See Wright City Dis- tervenor a unit of over-the-road truckdrivers of the play Manufacturing Company, a Subsidiary of Per- Employer. The Intervenor opposes the requested maneer Corporation (Delaware), 183 NLRB 881 severance on several grounds: First, that the Peti- (1970); Downington Paper Co., a Division of Sonoco tioner is not a labor organization within the mean- Products Company, 192 NLRB 310 (1971). 3 ing of the Act; second, that the Petitioner should not be Certified as representative because it would 2 In its b'ref dated September 18, 1980. the Intervenor contends that the parties are abiding by an unsigned contract covering the certified unit discriminate against black employees and perpetu- including over-the-road truckdrivers. ate Unlawful privileges Of White employees; and, I w e would distinguish the cases cited by the Intervenor: Rockingham third, that the unit sought is not an anrnnriatp unit PO'" y P Mrketing Cooperative, Inc.. 174 NLRB 1278 (1969), where the third, that the unit soughtiIS not an appropriate Unit over-the-road drivers performed in substantial respects duties similar to those of other drivers not sought, were at times transferred to production United Furniture Workers of America Local 282, AFL-CIO, herein jobs, and in some instances were subject to common supervision, and Los the Intervenor, was permitted to intervene on the basis of its contractual Angeles Herald-Examiner. Division of the Hearst Corporation, 200 NLRB representation pursuant to certification of a unit of the Employer's em- 475 (1972). which involved a unit of local drivers in the circulation de- ployees, including over-the-road truckdrivers. An initial contract expired partment found to have a clear history of bargaining on a broader basis as of March 12, 1980, and the parties have stipulated that there is no con- despite a period of separate representation pursuant to a stipulated con- tract bar to this proceeding to sever over-the-road truckdrivers.sent election. 259 NLRB No. 61 MEMPHIS FURNITURE MANUFACTURING CO. 401 Memphis Furniture Manufacturing Co. and Mem- for severance from the existing overall bargaining phis Truckers Association, Petitioner. Case 26- unit. We find no merit in the Intervenor's positions. RC-6180 The Employer is a manufacturer of furniture lo- Novem ber 27, 1981 cated in Memphis, Tennessee, employing approxi- mately 1,000 employees. The Intervenor was certi- DECISION AND DIRECTION OF fl e d in 1978 t o represent an overall bargaining unit ELECTION including all production and maintenance employ- ees and local and over-the-road truckdrivers. As in- BY MEMBERS FANNING, JENKINS, AND dicated above, the initial collective-bargaining ZIMMERMAN agreement expired as of March 12, 1980. At the Upon a . petition duly filed under Section 9) of ntim e of hearing it did not appear that a new con- Upon a petition duly filed under Section 9(c) of „at a been executed 2 the National Labor Relations Act, as amended, a tac had bn e d. the Ntionl Laor Rlatios Ac as mendd, a Employer employs 16 over-the-road truck- hearing was held on August 27, 1980, before Hear- T E p ly1 oet ed tuk ing ffier elvn L.For. Flloing he earng, drivers, who deliver furniture manufactured by the ing Officer Melvmn L. Ford. Followmg the hearing, Employer. These truckdrivers are dispatched from this case was transferred to the National Labor Re- E . These locadrsveral blocks from latins oardin ashigto, D.., or dcison, the "truck shop," located several blocks from the lations Board St Washingtonf D.Ct i for decision,r Employer's manufacturing plant and warehouse. pursuant to Section 102.67 of the National Labor Truckdrivers spend 95 percent of their time away Relations Board Rules and Regulations and State- Tudom the plant, do no plant work, do not load their ments of Procedure, Series 8, as amended. Thereaf- from he no nontant with doctio ad thir ter, the Petitioner and the Intervenor' filed briefs. trucks, have only octional con- tenance employees, and have only occasional con- Pursuant to the provisions of Section 3(b) of the tact with truck shop mechanics. Their hours differ National Labor Relations Act, as amended, the Na- from those of production and maintenance employ- tional Labor Relations Board has delegated its au- ees and they are not supervised by production and thority in this proceeding to a three-member panel. maintenance supervisors. They are generally dis- The Hearing Officer's rulings made at the hear- patched by telephone and come to the truck shop ing are free from prejudicial error and are hereby to pick up their loads, choosing from the available affirmed. bills of lading laid out for their inspection. Over- Upon the entire record in this case, including the the-road truckdrivers are paid by mileage, whereas briefs, the Board finds: production and maintenance employees, including 1. The Employer is engaged in commerce within local drivers and "city switchmen," are paid the meaning of the Act and it will effectuate the hourly. Unlike local drivers, over-the-road truck- purposes of the Act to assert jurisdiction herein. drivers are subject to regulations of the Depart- 2. The labor organizations involved claim to rep- ment of Transportation, including required physical resent certain employees of the Employer. examinations and limits on the amount of time de- 3. A question affecting commerce exists concern- voted to driving within a given period. Based on ing the representation of employees of the Employ- the foregoing factors, we find that over-the-road er within the meaning of Section 9(c)(l) and Sec- truckdrivers employed by the Employer constitute tion 2(6) and (7) of the Act. a homogeneous, functionally distinct group such as 4. The Petitioner, by petition of March 13, 1980, the Board has traditionally accorded the right of seeks to sever from the existing production and self-determination, notwithstanding a history of maintenance unit currently represented by the In- bargaining on a broader basis. See Wright City Dis- tervenor a unit of over-the-road truckdrivers of the play Manufacturing Company, a Subsidiary of Per- Employer. The Intervenor opposes the requested maneer Corporation (Delaware), 183 NLRB 881 severance on several grounds: First, that the Peti- (1970); Downington Paper Co., a Division of Sonoco tioner is not a labor organization within the mean- Products Company, 192 NLRB 310 (1971). 3 ing of the Act; second, that the Petitioner should not be Certified as representative because it would 2In its bri ef dated September 18, 1980. the Intervenor contends that the parties are abiding by an unsigned contract covering the certified unit discriminate against black employees and perpetu- including over-the-road truckdrivers. ate Unlawful privileges Of White employees; and, I w e would distinguish the cases cited by the Intervenor: Rockingham third, that the unit sought is not an annmpriate unit PO'" y P Mrketing Cooperative, Inc.. 174 NLRB 1278 (1969), where the third, that the unit sought IS not an appropriate Unit over-the-road drivers performed in substantial respects duties similar to those of other drivers not sought, were at times transferred to production United Furniture Workers of America Local 282, AFL-CIO, herein jobs, and in some instances were subject to common supervision, and Los the Intervenor, was permitted to intervene on the basis of its contractual Angeles Herald-Examiner. Division of the Hearst Corporation, 200 NLRB representation pursuant to certification of a unit of the Employer's em- 475 (1972). which involved a unit of local drivers in the circulation de- ployees, including over-the-road truckdrivers. An initial contract expired partment found to have a clear history of bargaining on a broader basis as of March 12, 1980, and the parties have stipulated that there is no con- despite a period of separate representation pursuant to a stipulated con- tract bar to this proceeding to sever over-the-road truckdrivers.sent election. 259 NLRB No. 61 MEMPHIS FURNITURE MANUFACTURING CO. 401 Memphis Furniture Manufacturing Co. and Mem- for severance from the existing overall bargaining phis Truckers Association, Petitioner. Case 26- unit. We find no merit in the Intervenor's positions. RC-6180 The Employer is a manufacturer of furniture lo- Novem ber 27, 1981 cated in Memphis, Tennessee, employing approxi- mately 1,000 employees. The Intervenor was certi- DECISION AND DIRECTION OF fl e d in 1978 t o represent an overall bargaining unit ELECTION including all production and maintenance employ- ees and local and over-the-road truckdrivers. As in- BY MEMBERS FANNING, JENKINS, AND dicated above, the initial collective-bargaining ZIMMERMAN agreement expired as of March 12, 1980. At the Upon a . petition duly filed under Section 9) of ntim e of hearing it did not appear that a new con- Upon a petition duly filed under Section 9(c) of „at a been executed 2 the National Labor Relations Act, as amended, a tac had bn e d. the Ntionl Laor Rlatios Ac as mendd, a Employer employs 16 over-the-road truck- hearing was held on August 27, 1980, before Hear- T E p ly1 oet ed tuk ing ffier elvn L.For. Flloing he earng, drivers, who deliver furniture manufactured by the ing Officer Melvmn L. Ford. Followmg the hearing, Employer. These truckdrivers are dispatched from this case was transferred to the National Labor Re- E . These locadrsveral blocks from latins oardin ashigto, D.., or dcison, the "truck shop," located several blocks from the lations Board St Washingtonf D.Ct i for decision,r Employer's manufacturing plant and warehouse. pursuant to Section 102.67 of the National Labor Truckdrivers spend 95 percent of their time away Relations Board Rules and Regulations and State- Tudom the plant, do no plant work, do not load their ments of Procedure, Series 8, as amended. Thereaf- from he no nontant with doctio ad thir ter, the Petitioner and the Intervenor' filed briefs. trucks, have only octional con- tenance employees, and have only occasional con- Pursuant to the provisions of Section 3(b) of the tact with truck shop mechanics. Their hours differ National Labor Relations Act, as amended, the Na- from those of production and maintenance employ- tional Labor Relations Board has delegated its au- ees and they are not supervised by production and thority in this proceeding to a three-member panel. maintenance supervisors. They are generally dis- The Hearing Officer's rulings made at the hear- patched by telephone and come to the truck shop ing are free from prejudicial error and are hereby to pick up their loads, choosing from the available affirmed. bills of lading laid out for their inspection. Over- Upon the entire record in this case, including the the-road truckdrivers are paid by mileage, whereas briefs, the Board finds: production and maintenance employees, including 1. The Employer is engaged in commerce within local drivers and "city switchmen," are paid the meaning of the Act and it will effectuate the hourly. Unlike local drivers, over-the-road truck- purposes of the Act to assert jurisdiction herein. drivers are subject to regulations of the Depart- 2. The labor organizations involved claim to rep- ment of Transportation, including required physical resent certain employees of the Employer. examinations and limits on the amount of time de- 3. A question affecting commerce exists concern- voted to driving within a given period. Based on ing the representation of employees of the Employ- the foregoing factors, we find that over-the-road er within the meaning of Section 9(c)(l) and Sec- truckdrivers employed by the Employer constitute tion 2(6) and (7) of the Act. a homogeneous, functionally distinct group such as 4. The Petitioner, by petition of March 13, 1980, the Board has traditionally accorded the right of seeks to sever from the existing production and self-determination, notwithstanding a history of maintenance unit currently represented by the In- bargaining on a broader basis. See Wright City Dis- tervenor a unit of over-the-road truckdrivers of the play Manufacturing Company, a Subsidiary of Per- Employer. The Intervenor opposes the requested maneer Corporation (Delaware), 183 NLRB 881 severance on several grounds: First, that the Peti- (1970); Downington Paper Co., a Division of Sonoco tioner is not a labor organization within the mean- Products Company, 192 NLRB 310 (1971). 3 ing of the Act; second, that the Petitioner should not be Certified as representative because it would 2In its bri ef dated September 18, 1980. the Intervenor contends that the parties are abiding by an unsigned contract covering the certified unit discriminate against black employees and perpetu- including over-the-road truckdrivers. ate Unlawful privileges Of White employees; and, I w e would distinguish the cases cited by the Intervenor: Rockingham third, that the unit sought is not an annmpriate unit PO'" y P Mrketing Cooperative, Inc.. 174 NLRB 1278 (1969), where the third, that the unit sought IS not an appropriate Unit over-the-road drivers performed in substantial respects duties similar to those of other drivers not sought, were at times transferred to production United Furniture Workers of America Local 282, AFL-CIO, herein jobs, and in some instances were subject to common supervision, and Los the Intervenor, was permitted to intervene on the basis of its contractual Angeles Herald-Examiner. Division of the Hearst Corporation, 200 NLRB representation pursuant to certification of a unit of the Employer's em- 475 (1972). which involved a unit of local drivers in the circulation de- ployees, including over-the-road truckdrivers. An initial contract expired partment found to have a clear history of bargaining on a broader basis as of March 12, 1980, and the parties have stipulated that there is no con- despite a period of separate representation pursuant to a stipulated con- tract bar to this proceeding to sever over-the-road truckdrivers.sent election. 259 NLRB No. 61 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the contention that the Petitioner is cluding mechanics, mechanics' helpers, local not a labor organization within the meaning of the drivers, city switchmen, all other employees, Act, we note that the Petitioner was formed for and supervisors as defined by the Act. the purpose of representing employees in bargain- We shall make no final unit determination at this ing with their employer concerning wages, hours, time, but shall be guided in part by the desires of and terms and conditions of employment. Accord- the employees as expressed in the election herein- ingly, we find that the Petitioner is a labor organi- after directed. If a majority of those in the voting zation within the meaning of the Act. We do not group vote for the Petitioner, they will be taken to find controlling the fact that the Association has no have indicated their desire to constitute a separate history of representing truckdrivers, though estab- appropriate unit, and the Regional Director con- lished for that express purpose. See Friden Calcu- ducting the election will issue a Certification of lating Machine Co., Inc., and Marchant Calculators, Representative to the Petitioner for the unit de- Inc., I 10 NLRB 1618, 1619 (1954). scribed above, which the Board, in such circum- With respect to the Intervenor's concern that the stances, finds to be appropriate for purposes of col- Petitioner, if certified, is unlikely to represent black lective bargaining. In the event that a majority do employees fairly and equally, the Board does not not vote for the Petitioner, these employees shall consider a contention of that sort before certifica- remain a part of the existing unit and the Regional tion. See Pioneer Bus Company, Inc., 140 NLRB 54, Director will issue a Certification of Results of 56 (1962). In the event the Petitioner is certified Election to such effect. and then abuses its certification by failing to repre- [Direction of Election omitted from publica- sent all unit employees fairly, the Board will then tion] consider a motion to revoke the certification. 4 Our colleague emphasizes the invidious discrimi- MEMBER JENKINS, dissenting: nation "apparent in this case" and would have the Contrary to my colleagues, I would dismiss the evidence in that regard considered before certifica- instant petition for severance of the over-the-road tion. This is, of course, consistent with our col- truckdrivers from the existing unit. The attempted league's dissent in Handy Andy, Inc., 228 NLRB severance is a thinly disguised and racially discrim- 447, 457 (1977), wherein a Board majority conclud- inatory ploy designed to install and perpetuate a ed, at 455: ". . . that our statutory function of system of segregation in the Employer's workplace eliminating invidious discrimination by labor orga- and thus to divide the existing bargaining unit nizations is best served by scrutinizing their activi- along racial classifications. ties when they are subject to our adversary proce- The facts in this regard reveal that the Interve- dures and remedial orders." The Board there went nor, a predominantly black local union, has since on to say that it had long used unfair labor practice 1978 represented a certified unit of the Employer's procedures rather than representation procedures work force consisting of approximately 1,000 em- to consider allegations of invidious discrimination, ployees. The present unit which includes over-the- as a result of which "the duty of fair representation road truckdrivers and other employees of the Em- has become the touchstone of the Board's n ployer's trucking division as well as production and has become the touchstone of the Board's concern with invidious discrimination by unions." If the maintenance employees, is likewise predominantly Union here succeeds in being certified, it will black. In contrast, the unit sought in the instant pe- Union here succeeds in being certified, it will thereafter be appropriate to consider whether it is titon consists of 16 employees, 12 of whom are fairly representing all members of the unit. white. The Petitioner is a local unaffiliated organi- We find, therefore, that the Employer's over-the- zation with a grand total of 12 members-not coin- road truckdrivers may, if they so desire, constitutely the 12 white truckdivers employed by a separate appropriate unit for the purposes of col- the Employer The Petitioner was formed in lective bargaining, and we shall therefore direct an March 1980 and at the time of the hearing had hel election among the employees in the following four meetigs. None of the black truckdrvers voting group: whom Petitioner seeks to represent was informed of or invited to attend these meetings. All over-the-road truckdrivers of the Em- Under these circumstances, I am unwilling to ployer at its plant in Memphis, Tennessee, ex- join my colleagues' direction of election in a unit so patently discriminatory that the results would 'The Intervenor also contends that the Petitioner is a sham union and s* at t 6 that the role of a "management" law firm in the Petitioner's formation amount to a segregation of the work force.6 The suggests financial assistance, presumably by the Employer. The Interve- nor views the Petitioner as consisting of 12 white, antiunion employees 5 [Excelsior footnote omitted from publication.l who have already rejected representation by the Teamsters and who are 6 My colleagues rely on the fact that we have, in the past, allowed sev- really intent upon nonrepresentation, thus relegating the 4 black drivers erance of similar units. However, aside from the factual differences be- to production jobs. This argument is also a post-certification issue. Cotinued 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the contention that the Petitioner is eluding mechanics, mechanics' helpers, local not a labor organization within the meaning of the drivers, city switchmen, all other employees, Act, we note that the Petitioner was formed for and supervisors as defined by the Act. the purpose of representing employees in bargain- We shall make no final unit determination at this ing with their employer concerning wages, hours, time, but shall be guided in part by the desires of and terms and conditions of employment. Accord- the employees as expressed in the election herein- ingly, we find that the Petitioner is a labor organi- after directed. If a majority of those in the voting zation within the meaning of the Act. We do not group vote for the Petitioner, they will be taken to find controlling the fact that the Association has no have indicated their desire to constitute a separate history of representing truckdrivers, though estab- appropriate unit, and the Regional Director con- lished for that express purpose. See Friden Calcu- ducting the election will issue a Certification of lating Machine Co., Inc., and Marchant Calculators, Representative to the Petitioner for the unit de- Inc., 110 NLRB 1618, 1619 (1954). scribed above, which the Board, in such circum- With respect to the Intervenor's concern that the stances, finds to be appropriate for purposes of col- Petitioner, if certified, is unlikely to represent black lective bargaining. In the event that a majority do employees fairly and equally, the Board does not not vote for the Petitioner, these employees shall consider a contention of that sort before certifica- remain a part of the existing unit and the Regional tion. See Pioneer Bus Company, I nc., 140 NLRB 54, Director will issue a Certification of Results of 56 (1962). In the event the Petitioner is certified Election to such effect. and then abuses its certification by failing to repre- [Direction of Election' omitted from publica- sent all unit employees fairly, the Board will then tion.] consider a motion to revoke the certification.4 Our colleague emphasizes the invidious discrimi- MEMBER JENKINS, dissenting: nation "apparent in this case" and would have the Contrary to my colleagues, I would dismiss the evidence in that regard considered before certifica- instant Petition for severance of the over-the-road tion. This is, of course, consistent with our col- truckdrivers from the existing unit. The attempted league's dissent in Handy Andy, Inc., 228 NLRB severance is a thinly disguised and racially discrim- 447, 457 (1977), wherein a Board majority conclud- inatory ploy designed to install and perpetuate a ed, at 455: ". . . that our statutory function of sy st e m o f segregation in the Employer's workplace eliminating invidious discrimination by labor orga- a n d t h u s t o divi d e th e existing bargaining unit nizations is best served by scrutinizing their activi- along racial classifications. ties when they are subject to our adversary proce- T h e f a c t s in t his regard reveal that the Interve- dures and remedial orders." The Board there went n o r , a predominantly black local union, has since on to say that it had long used unfair labor practice 1978 represented a certified unit of the Employer's procedures rather than representation procedures w o r k fo rc e consisting of approximately 1,000 em- to consider allegations of invidious discrimination, ployees. The present unit, which includes over-the- as a result of which "the duty of fair representation r oad truckdrivers and other employees of the Em- has become the touchstone of the Board's concern ployer' s trucking division as well as production and with invidious discrimination by unions." If the maintenance employees, is likewise predominantly Union here succeeds in being certified, it will bl ac k. In c o ntr ast, th e unit sought in the instant pe- thereafter be succeeds to consider whether it is tition c o ns ist s o f 16 employees, 12 of w ho m ar e fairly representing all members of the unit.h w h it e .T h e Petitioner is a local unaffiliated organi- We find. therefore, that the Employer's over-the- zat io n w it h a grand total o f 12 members-not coin- road truckdrivers may, if they so desire, constitute dentally ^e 12 white truckdi vers employed by a separate appropriate unit for the purposes of col- M th e 1980 anda. T he Pet i t m o ner w as . hamed hl lective bargaining, and we shall therefore direct an M ar c h 1980 and at th e t N me of theblcktrc had hel d election among the employees in the following f o u r ""-etmngs. None of the black truckdnivers votine aroungywhom Petitioner seeks to represent was informed of or invited to attend these meetings. All over-the-road truckdrivers of the Em- Under these circumstances, I am unwilling to ployer at its plant in Memphis, Tennessee, ex- join my colleagues' direction of election in a unit ------ ~~~~~~~~~~so patently discriminatory that the results would 4The Intervenor also contends that the Petitioner is a sham union and s ptntly discriminatory tha the res ultrsa Twol that the role of a "management" law firm in the Petitioner's formation amount to a Segregation of the Work force. 6 The suggests financial assistance, presumably by the Employer. The Interve- nor views the Petitioner as consisting of 12 white, antiunion employees 5[Excelsior footnote omitted from publication.) who have already rejected representation by the Teamsters and who are e My colleagues rely on the fact that we have, in the past, allowed sev- really intent upon nonrepresentation, thus relegating the 4 black drivers erance of similar units. However, aside from the factual differences be- to production jobs. This argument is also a post-certification issue. Continued 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the contention that the Petitioner is eluding mechanics, mechanics' helpers, local not a labor organization within the meaning of the drivers, city switchmen, all other employees, Act, we note that the Petitioner was formed for and supervisors as defined by the Act. the purpose of representing employees in bargain- We shall make no final unit determination at this ing with their employer concerning wages, hours, time, but shall be guided in part by the desires of and terms and conditions of employment. Accord- the employees as expressed in the election herein- ingly, we find that the Petitioner is a labor organi- after directed. If a majority of those in the voting zation within the meaning of the Act. We do not group vote for the Petitioner, they will be taken to find controlling the fact that the Association has no have indicated their desire to constitute a separate history of representing truckdrivers, though estab- appropriate unit, and the Regional Director con- lished for that express purpose. See Friden Calcu- ducting the election will issue a Certification of lating Machine Co., Inc., and Marchant Calculators, Representative to the Petitioner for the unit de- Inc., 110 NLRB 1618, 1619 (1954). scribed above, which the Board, in such circum- With respect to the Intervenor's concern that the stances, finds to be appropriate for purposes of col- Petitioner, if certified, is unlikely to represent black lective bargaining. In the event that a majority do employees fairly and equally, the Board does not not vote for the Petitioner, these employees shall consider a contention of that sort before certifica- remain a part of the existing unit and the Regional tion. See Pioneer Bus Company, I nc., 140 NLRB 54, Director will issue a Certification of Results of 56 (1962). In the event the Petitioner is certified Election to such effect. and then abuses its certification by failing to repre- [Direction of Election' omitted from publica- sent all unit employees fairly, the Board will then tion.] consider a motion to revoke the certification.4 Our colleague emphasizes the invidious discrimi- MEMBER JENKINS, dissenting: nation "apparent in this case" and would have the Contrary to my colleagues, I would dismiss the evidence in that regard considered before certifica- instant Petition for severance of the over-the-road tion. This is, of course, consistent with our col- truckdrivers from the existing unit. The attempted league's dissent in Handy Andy, Inc., 228 NLRB severance is a thinly disguised and racially discrim- 447, 457 (1977), wherein a Board majority conclud- inatory ploy designed to install and perpetuate a ed, at 455: ". . . that our statutory function of sy st e m o f segregation in the Employer's workplace eliminating invidious discrimination by labor orga- a n d t h u s t o divi d e th e existing bargaining unit nizations is best served by scrutinizing their activi- along racial classifications. ties when they are subject to our adversary proce- T h e f a c t s in t his regard reveal that the Interve- dures and remedial orders." The Board there went n o r , a predominantly black local union, has since on to say that it had long used unfair labor practice 1978 represented a certified unit of the Employer's procedures rather than representation procedures w o r k fo rc e consisting of approximately 1,000 em- to consider allegations of invidious discrimination, ployees. The present unit, which includes over-the- as a result of which "the duty of fair representation r oad truckdrivers and other employees of the Em- has become the touchstone of the Board's concern ployer' s trucking division as well as production and with invidious discrimination by unions." If the maintenance employees, is likewise predominantly Union here succeeds in being certified, it will bl ac k. In c o ntr ast, th e unit sought in the instant pe- thereafter be succeeds to consider whether it is tition c o ns ist s o f 16 employees, 12 of w ho m ar e fairly representing all members of the unit.h w h it e .T h e Petitioner is a local unaffiliated organi- We find. therefore, that the Employer's over-the- zat io n w it h a grand total o f 12 members-not coin- road truckdrivers may, if they so desire, constitute dentally the 12 white truckdi vers employed by a separate appropriate unit for the purposes of col- M th e 1980 anda. T he Pet i t m on er w as . ha m ed ln lective bargaining, and we shall therefore direct an M ar c h 1980 and at th e t N me of theblcktrc had hel d election among the employees in the following f o u r ""-etmngs. None of the black truckdnivers votine aroungywhom Petitioner seeks to represent was informed of or invited to attend these meetings. All over-the-road truckdrivers of the Em- Under these circumstances, I am unwilling to ployer at its plant in Memphis, Tennessee, ex- join my colleagues' direction of election in a unit ------ ~~~~~~~~~~so patently discriminatory that the results would 4The Intervenor also contends that the Petitioner is a sham union and s ptntly discriminatory tha the res ultrsa Twol that the role of a "management" law firm in the Petitioner's formation amount to a Segregation of the Work force. 6 The suggests financial assistance, presumably by the Employer. The Interve- nor views the Petitioner as consisting of 12 white, antiunion employees 5[Excelsior footnote omitted from publication.) who have already rejected representation by the Teamsters and who are e My colleagues rely on the fact that we have, in the past, allowed sev- really intent upon nonrepresentation, thus relegating the 4 black drivers erance of similar units. However, aside from the factual differences be- to production jobs. This argument is also a post-certification issue. Continued 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the contention that the Petitioner is eluding mechanics, mechanics' helpers, local not a labor organization within the meaning of the drivers, city switchmen, all other employees, Act, we note that the Petitioner was formed for and supervisors as defined by the Act. the purpose of representing employees in bargain- We shall make no final unit determination at this ing with their employer concerning wages, hours, time, but shall be guided in part by the desires of and terms and conditions of employment. Accord- the employees as expressed in the election herein- ingly, we find that the Petitioner is a labor organi- after directed. If a majority of those in the voting zation within the meaning of the Act. We do not group vote for the Petitioner, they will be taken to find controlling the fact that the Association has no have indicated their desire to constitute a separate history of representing truckdrivers, though estab- appropriate unit, and the Regional Director con- lished for that express purpose. See Friden Calcu- ducting the election will issue a Certification of lating Machine Co., Inc., and Marchant Calculators, Representative to the Petitioner for the unit de- Inc., 110 NLRB 1618, 1619 (1954). scribed above, which the Board, in such circum- With respect to the Intervenor's concern that the stances, finds to be appropriate for purposes of col- Petitioner, if certified, is unlikely to represent black lective bargaining. In the event that a majority do employees fairly and equally, the Board does not not vote for the Petitioner, these employees shall consider a contention of that sort before certifica- remain a part of the existing unit and the Regional tion. See Pioneer Bus Company, I nc., 140 NLRB 54, Director will issue a Certification of Results of 56 (1962). In the event the Petitioner is certified Election to such effect. and then abuses its certification by failing to repre- [Direction of Election' omitted from publica- sent all unit employees fairly, the Board will then tion.] consider a motion to revoke the certification.4 Our colleague emphasizes the invidious discrimi- MEMBER JENKINS, dissenting: nation "apparent in this case" and would have the Contrary to my colleagues, I would dismiss the evidence in that regard considered before certifica- instant Petition for severance of the over-the-road tion. This is, of course, consistent with our col- truckdrivers from the existing unit. The attempted league's dissent in Handy Andy, Inc., 228 NLRB severance is a thinly disguised and racially discrim- 447, 457 (1977), wherein a Board majority conclud- inatory ploy designed to install and perpetuate a ed, at 455: ". . . that our statutory function of sy st e m o f segregation in the Employer's workplace eliminating invidious discrimination by labor orga- a n d t h u s t o divi d e th e existing bargaining unit nizations is best served by scrutinizing their activi- along racial classifications. ties when they are subject to our adversary proce- T h e f a c t s in t his regard reveal that the Interve- dures and remedial orders." The Board there went n o r , a predominantly black local union, has since on to say that it had long used unfair labor practice 1978 represented a certified unit of the Employer's procedures rather than representation procedures w o r k fo rc e consisting of approximately 1,000 em- to consider allegations of invidious discrimination, ployees. The present unit, which includes over-the- as a result of which "the duty of fair representation r oad truckdrivers and other employees of the Em- has become the touchstone of the Board's concern ployer' s trucking division as well as production and with invidious discrimination by unions." If the maintenance employees, is likewise predominantly Union here succeeds in being certified, it will bl ac k. In c o ntr ast, th e unit sought in the instant pe- thereafter be succeeds to consider whether it is tition c o ns ist s o f 16 employees, 12 of w ho m ar e fairly representing all members of the unit.h w h it e .T h e Petitioner is a local unaffiliated organi- We find. therefore, that the Employer's over-the- zat io n w it h a grand total o f 12 members-not coin- road truckdrivers may, if they so desire, constitute dentally the 12 white truckdnvers employed by a separate appropriate unit for the purposes of col- M th e 1980 anda. T he Pet i t m on er w as . ha m ed ln lective bargaining, and we shall therefore direct an M ar c h 1980 and at th e t N me of theblcktrc had hel d election among the employees in the following f o u r ""-etmngs. None of the black truckdnivers votine aroungywhom Petitioner seeks to represent was informed of or invited to attend these meetings. All over-the-road truckdrivers of the Em- Under these circumstances, I am unwilling to ployer at its plant in Memphis, Tennessee, ex- join my colleagues' direction of election in a unit ------ ~~~~~~~~~~so patently discriminatory that the results would 4The Intervenor also contends that the Petitioner is a sham union and s ptntly discriminatory tha the res ultrsa Twol that the role of a "management" law firm in the Petitioner's formation amount to a Segregation of the Work force. 6 The suggests financial assistance, presumably by the Employer. The Interve- nor views the Petitioner as consisting of 12 white, antiunion employees 5[Excelsior footnote omitted from publication.) who have already rejected representation by the Teamsters and who are e My colleagues rely on the fact that we have, in the past, allowed sev- really intent upon nonrepresentation, thus relegating the 4 black drivers erance of similar units. However, aside from the factual differences be- to production jobs. This argument is also a post-certification issue. Continued MEMPHIS FURNITURE MANUFACTURING CO. 403 blatant exclusion of the black over-the-road truck- was purposeful. For the Board, an agency of the drivers from membership or participation in the Pe- United States Government, to grant its imprimatur titioner can leave no doubt that that their exclusion to such an organization is to countenance a mani- fest injustice and a breach of constitutional require- tween those cases and here, whether we might allow a similar unit under ments. I will have no part of any such action. different circumstances is not relevant. What is important is that the Board must not countenance the invidious discrimination apparent in this case.