Frank Hager, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frank Hager, Inc. and General Drivers, Warehouse- men and Helpers, Local 89, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Petitioner. Case 9-RC-11480 June 27, 1977 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer James E. Horner of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, by direction of the Regional Director for Region 9, this case was transferred to the Board for Decision. Thereafter, the Employer and Petitioner filed briefs, and the Em- ployer filed a motion to reopen the record.1 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. On the entire record in this case, the Board finds: 1. The parties stipulated, and we find, that the Employer is a Kentucky corporation engaged in the business of transporting liquids, by truck, from its place of business in Louisville, Kentucky, to various States in the United States and in the course of the conduct of its operations annually derives gross revenues in excess of $50,000. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to represent certain employees of the Employer.2 3. The Employer contends that the Independent has been the collective-bargaining representative of ' The Employer moved to reopen the record to adduce testimony relevant to newly discovered evidence; i.e., letters allegedly signed by unit employees indicating that they are not interested in being represented by, or affiliated with, Petitioner. Should the Board deem reopening the record unnecessary the Employer has, in the alternative, moved the admission of the letters into evidence. It is well settled that a showing of interest is not subject to attack on grounds that the authorization cards on which it is based have been revoked or withdrawn and that the question of whether particular employees have changed their minds can best be resolved on the basis of an election by secret ballot. General Dynamics Corporation, Convair Division, 175 NLRB 1035 (1969). Accordingly, the Employer's motions are denied. 2 Frank Hager, Inc., Employees Independent Union (herein called the 230 NLRB No. 50 its truckdrivers and shop employees since it was organized in 19733 and that the current contract, extending from August 1, 1975, to July 31, 1978, is a bar to the conduct of an election herein. The Petitioner, on the other hand, contends that this contract is not a bar inasmuch as it is not the result of bona fide negotiations. In representation proceedings, whether a collec- tive-bargaining agreement constitutes a bar is gener- ally determined from the face of the contract and not from extrinsic evidence.4 The Board has, however, in implementing its discretionary contract-bar rules, developed exceptions to this general principle where it appears that the alleged contract is not "one imparting sufficient stability to the bargaining relationship to justify our withholding a present determination of representation." 5 For the reasons set forth below, we conclude that consideration of extrinsic evidence in the instant case is warranted. The Employer contends that it negotiated and signed the purported current collective-bargaining agreement with the Independent following the expiration of a prior contract which served as the basis for the negotiations. Although the current contract appears on its face to be a valid collective- bargaining agreement, the undisputed record reveals that bona fide negotiations in fact did not occur. Thus, it is undisputed that the three employees, West, Brummett, and Miller, whose signatures appear on the contract on behalf of the Independent, were separately summoned into the office of Frank Hager, the Employer's president, and directed by him to sign a piece of paper which later became the signatory page of the purported contract. While, at the time, Hager made some reference to a contract, West and Brummett testified without contradiction that they were not shown any such document. 6 Miller testified that he was given a draft contract by Hager which was almost identical to the 1973-75 contract. After Miller made changes in this draft, the final page was removed and Miller signed it. Hager told Miller that to save time the draft would be retyped and then attached to the signatory page. Brummett and West were both told that, if they signed the paper before them, employees would receive a wage increase. However, neither was given any opportunity to Independent), entered an appearance at the hearing, but declined to intervene. 3 The record contains no evidence as to the circumstances surrounding the formation of the Independent and the Employer's initial recognition of that labor organization. 4 See, e.g., Loree Footwear Corporation, 197 NLRB 360 (1972), and cases cited therein. 5 Raymonds, Inc., 161 NLRB 838, 840 (1966); see also Emanuel Birnbaum and John W. Jones d/b/a Silver Lake Nursing Home, 178 NLRB 478 (1969). 6 In fact, neither West nor Brummett saw the alleged contract until the instant hearing. 476 FRANK HAGER, INC. discuss the amount of the increase, nor permitted to see the other contract terms which the Employer now contends were the result of negotiations with the Independent. In fact, according to West he signed the paper as requested because he was told that, if he did not, he would lose his job. It is clear that the contract alleged to be a bar herein was not made available to employees until April 1976, more than 9 months after it was signed. Furthermore, at that time only a few copies were distributed to employees and then only after employ- ees complained that the Independent was dormant and demanded "full contract negotiations." Indeed, the record indicates that, at the same meeting at which Hager distributed the contract, he raised the possibility of pay increases exceeding those permitted by the contract. Furthermore, with respect to the 1973-75 contract which the Employer contends formed the basis of the alleged negotiations, there is little evidence to substantiate that said contract in fact existed. While Miller testified that the draft contract Hager present- ed to him was almost identical to the 1973-75 contract, on cross-examination he admitted that he had never seen that contract in its entirety before going to Hager's office in August 1975, and that previously he had seen only portions of it sometime in early 1973. Further, although the Employer's vice president, Ray Thompson, testified that he always had a copy of a current contract which job applicants could see upon request, inasmuch as both West and Brummett denied ever having seen the 1973-75 contract, 7 it appears that if it did exist at all copies were not readily available to the employees. On these facts, we cannot find the Employer's agreement with the Independent to be the product of bargaining, collective or otherwise. 8 Instead, it appears to have been assembled by the Employer after signatures were secured from individuals on a separate piece of paper which the Employer later attached as the signatory page of the document now alleged to be a collective-bargaining agreement. With the exception of Miller, the signatories were never shown a draft of the Employer's proposals and were thereby precluded from commenting on the con- tract's provisions or making counterproposals. Fur- 7 Another employee witness testified that, in spite of requests to his supervisor, he was never shown a copy of a contract between the Employer and the Independent. s See in this regard Austin Powder Company, 201 NLRB 566 (1973). Having found that the Employer's contract with the Independent is not a bar to the instant petition, we find it unnecessary to pass upon Petitioner's contentions that the Independent is defunct and that a schism existed in the Independent. 1' Inasmuch as the employee status of the owner-operators, while no longer disputed by the parties, was raised at the hearing, and a bargaining unit may not include individuals who are not employees within the meaning of Sec. 2(3) of the Act, we find it necessary to determine whether the owner- thermore, at least one employee's signature was secured only after he was threatened with termina- tion. That some reference was made to the signing of a contract between the Independent and the Employ- er, or that the employees who signed believed that doing so would result in a pay increase to fellow workers, can only establish that no bargaining occurred. Under such circumstances, we find that the contract does not reflect an agreement between the parties reached through the collective-bargaining process, and therefore does not constitute a bar to the instant petition.9 Based on the foregoing, we find a question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. Petitioner seeks to represent a unit composed of all single owner-operators,10 drivers, mechanics, tank cleaners, and shop employees of the Employer employed at its terminal, at Louisville, Kentucky, excluding all office clerical employees, dispatchers, professional employees, guards, and supervisors as defined in the Act. The Employer does not contend that this unit is inappropriate for purposes of collective bargaining, but rather concedes that it encompasses the same employees allegedly repre- sented by the Independent. Inasmuch as there is no contention or evidence that the unit sought is inappropriate and the Board has found similar units appropriate in the past," we find the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All single owner-operators, drivers, mechanics, tank cleaners, and shop employees of the Em- ployer employed at its terminal, Louisville, Kentucky, excluding all office clerical employees, dispatchers, professional employees, guards, and supervisors as defined in the Act. operators are employees or independent contractors. In this regard, the record establishes that the Employer exercises pervasive control over the owner-operators' mode of operation, particularly the assignment of runs including the distance, the nature of the load, and to whom they deliver, the maintenance of their equipment, the selection of their insurance, and the performance standards with which they must comply. We find, therefore, that the owner-operators herein are not independent contractors, but employees under the Act, and that the unit sought by Petitioner including the owner-operators is appropriate. See Dixie Transport Company, 218 NLRB 1243 (1975); Bowman Transportation, Inc., 142 NLRB 1093 (1963). " See, e.g., Norfolk, Baltimore and Carolina Lines, Inc., 175 NLRB 209 (1969); Bowman Transportation, Inc., supra. 477 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Direction of Election 12 and Excelsior footnote omitted from publication.] 12 Inasmuch as the Independent did not intervene in the instant proceeding its name will not appear on the ballot. We shall, however, permit it to move to have its name placed on the ballot on written request to the Regional Director within 10 days of issuance of this Decision and Direction of Election.