Ryder/P.I.E. Nationwide

RYDER/P I.E.-NATIONWIDE 599 Ryder/P.I.E. Nationwide and, Hershell Barnes Teamsters Local 745, affiliated with International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America and Hershell Barnes. Cases 16-CA-11246 and-16-CB-2212 31 May 1985 , - DECISION AND 'ORDER. BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 13 August 1984 Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent Union filed exceptions and a support- ing brief, and the General Counsel filed an answer- ing brief. The Board has considered the' decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and -to adopt the recommended Order.' - ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that Respondent Ryder/P.I.E. Nationwide, Dallas, Texas,- its officers, agents, suc- cessors, and assigns , and Respondent Teamsters Local 745, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Dallas, Texas, its -officers, agents, and representatives shall take the action set forth in the Order, except that the attached notice ' is' substituted for that of the administrative law judge. I We note that the judge failed to attach the appropriate "Notice To Members" to his decision We have correcied that inadvertent error APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or;- pro-tection To choose not toengage in -any--.of these,. -protected concerted activities. ; . ' WE WILL NOT act - as" - the collective-bargaining" " representative of the office, clericalf'employees` at. the Dallas • terminal' o_f Ryder/P.I.E. Nationwide„ unless and until the National ` Labor Relations Board certifies us as'the exclusive +bargaining,repre sentative of those employees. i WE WILL NOT effectuate 'the collective- bargain-ing agreement with- Ryder/P.I.E. Nationwide that was executed as of 11 July 1983 or any renewal, extension, modification, ' or - supplement of that agreement: WE WILL NOT in any like or related manner re- strain or -coerce employees, in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, jointly' and severally with Ryder/- P.I.E. Nationwide, make that Employer's employ- ees whole for any loss of earnings and benefits oc- casioned by application of the.aforesaid agreement with Ryder/P.I.E. Nationwide, or any renewal, ex- tension, modification, or supplement of that agree- ment, with interest on lost earnings. TEAMSTERS LOCAL 745, AFFILIATED WITH INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA - DECISION STATEMENT OF^THE CASE . RICHARD J. BOYCE, Administrative Law Judge. This consolidated matter was tried in Dallas, Texas, on No- vember 2 and 3, 1983. The charges against both Re- spondents, Ryder/P.I.E. Nationwide (the Company) and Teamsters Local 745, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), were filed August 17, 1983, and amended September 26 by Hershell Barnes, an attorney acting for certain affected employees.-The com- plaint issued September 27 and alleges that the Company violated Section 8(a)(2) and (1) of the National Labor Relations Act (the Act) in May- 1983 by recognizing the Union as the collective-bargaining representative of the office-clencal employees at its Dallas location when the Union did not represent a majority of those employees, and that it violated Section 8(a)(3) and (1) in July 1983 by entering into a labor agreement with the Union con- cerning those employees that affected various changes in the terms and conditions of employment of some of them. The complaint further alleges that the Union vio- lated Section 8(b)(1)(A) by accepting recognition in the absence of a majority, and that it violated Section 8(b)(2) 275 NLRB No. 84 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and (1)(A) by its ensuring entry into the labor agree- ment. I. JURISDICTION The Company is a Florida corporation engaged in the over-the-road transport of freight. It is undisputed that its revenues render it an employer engaged in and affect- ing commerce within Section 2(2), (6); and (7) of the Act, and it is so found. - Il. LABOR ORGANIZATION It is undisputed that the Union is a labor organization within Section 2(5) of the Act, and it is so found. erstwhile Ryder employees caused changes in their wage levels, health and welfare and pension benefits, and vaca- tion entitlements. The agreement did not contain a union- security provision. . Before the merger, the two Companies and the Union entered into a "memorandum of understanding" dealing with "questions of union representation that will anse in certain terminal offices" because of the merger. The memorandum, dated May 2, set forth an election proce- dure to be followed ""when an office represented by the Union is combined with a nonunion office and the em- ployees previously represented by the Union will not constitute a clear majority of the office employees work- ing at the merged terminal." The memorandum further provided: III. THE ALLEGED MISCONDUCT A. Evidence The Company came into being as of July 11, 1983, by virtue of the systemwide merger of Ryder Truck Lines (Ryder) and Pacific Intermountain Express (PIE). Until the merger, Ryder and PIE had separate terminals in the Dallas area. Employed at the Ryder terminal at all rele- vant times before the merger, were eight office clerical employees indisputably classified as "regulars," another eight who were termed "casuals," and one, Sarah Staggs, whose status was changed from the latter to the former shortly before the merger was implemented. Ryder's regulars and casuals were indistinguishable in hours worked, both putting in 40-hour weeks. "The only differ- ence that would separate them," according to Frank Bet- tencourt, manager of Ryder's Dallas terminal at relevant times, "was a pay level, number one, and the fact that the regulars received benefits and the casuals did not." The Ryder office clerical employees were nonunion. The Dallas PIE terminal likewise had eight office cler- ical employees classified as regulars at all relevant times before the merger. In addition, it had five or six casuals, one of whom worked only sporadically and two of whom worked just 16 hours per week. The regulars were represented by the Union and covered by a labor agreement All eight belonged to the Union. The casuals apparently were not in the bargaining unit, and none, ap- parently, belonged to the Union. The Dallas terminals of Ryder and PIE were consoli- dated as an incident of the merger, one result being the commingling of the office clerical employees of the two in a single facility. In anticipation of the merger's imple- mentation, the Union was accorded recognition as the collective-bargaining representative of all regular office clerical employees at the consolidated facility-to-be (and possibly of the office casuals as well);' and the former PIE labor agreement was made applicable as of July 11 to. all regulars (if not the casuals), of whom there then were the above-mentioned eight each from Ryder and PIE, plus Staggs.2 Imposition of the agreement on the In those situations where an office represented by the Union is combined with a nonunion office with the result that the Union continues to represent a clear majority of office employees at the merged terminal, the collective-bargaining agreement in effect at the time of the merger will continue in effect and the Union will be the collective-bargain- ing representative for the office employees at the merged terminal. The grant of recognition to the Union with respect to the employees in question occurred during a change-of- operations meeting, so called, held near Chicago on May 3 and 4 and attended by representatives of the two Com- panies and of the numerous Teamsters Locals affected by the merger: The Union presented an authorization card signed the preceding April 8 by the aforementioned Sarah Staggs, and contended that it thereby had a 9 to 8 majority among the regular office clericals in the con- solidated Dallas facility-to-be, entitling it to recognition under the May 2 memorandum. The card seemingly caught Company Spokesmen Fred Schrank and Leo Suggs by surprise, precipitating a "heated" exchange in which they at first opposed the Union's contention that the card should govern. At length, however, Schrank put the matter to rest, announcing: "The Company will agree and recognize the card."3 In the wake of the change-of-operations meeting, Ben Shelton, a Dallas-based Ryder labor-relations official who had attended, informed Bettencourt by telephone that the postmerger office would be union.4 "Staggs, the only Ryder office-clerical to sign a card at any relevant time, was classified by Ryder as a casual until at least June 28. Her signature was obtained by Billy Don Knowles, a Ryder dock worker and a steward for the Union, with respect to a represented unit of so- called city employees. Knowles testified that he did not know Staggs to be a casual when he solicited her to sign, and would not have bothered had he known-"There was no need of signing casuals up." 3 Schrank and Suggs, both ranking officials with Ryder, became vice i The record is in some confusion concerning the status of the casuals presidents for the Company coincident with the merger z There also were two confidential secretaries, carved over from 4 Shelton cited Staggs' card as the reason 'recognition was granted. Ryder No one contends that they should be considered in the unit for Bettencourt challenged "How can that happen? She was a casual " Shel- purposes of assessing the conduct in issue ton answered only that he "didn't have much to do with it " RYDER/P I E. NATIONWIDE 601 On June 28, representatives of the Company and of certain Teamsters locals met in Biloxi, Mississippi, to fur- ther refine the situations at various of the terminals in the South. During this meeting, an agreement was reached with regard to the Dallas terminal, to be executed July 5, providing among other things that the Company "dove- tail" the eight "regular full-time" employees of Ryder and the eight "regular full-time" employees of PIE "with their current seniority dates," and that Staggs "be added to the regular seniority roster with a seniority date of April 8, 1983, and be paid 90% of the contract rate of pay. Consistent with the agreement just described, Shelton called Bettencourt from Biloxi on June 28, directing that he add Staggs to the ".regular payroll" and "backdate" the change "to reflect the same date that she signed the union card," April 8. Bettencourt thereupon instructed his secretary, Bess Gray, to put Staggs on the regular se- niority roster, and she did so. A consolidated seniority roster posted June 29 over Bettencourt's signature, to be effective July 11, included Staggs' name and assigned her a seniority date of "4-08-83." Staggs' conversion to regular status did not follow' the usual practice. Not only was it not initiated by Betten- court, as terminal manager, which was customary, but the paperwork procedures normal to such an action were not observed. Indeed, a personnel-change request, stating that the change had become effective July 11,' was not prepared until October 10.5 - Asked the bases for converting office clerical employ- ees from casual to regular status, Bettencourt testified: "Ability was the main criteria. We also looked at .. . length of service, as another criteria, but ability being tops." Asked why Staggs was converted, Bettencourt testified: I have no way of really knowing, other than it would offset the original wording of the change where a simple majority would rule in the decision of an office going union or. nonunion.6 Bettencourt previously had been told by his superiors that there would be a "freeze" on hiring-a term includ- ing conversions from casual to regular status-during the pendency of the merger. He, nevertheless, submitted re- quests or about May 2 that three casuals, but not Staggs, be converted. The requests were denied. The office clerical regulars-at Ryder's Dallas terminal received official notification ' of their postmerger union status from Tom Jones, a Ryder regional manager, during an employee- meeting June 28. Bettencourt testi- fied that word was delayed until then because he and Jones had been "trying to find out if there was any alter- native," and it had not been "confirmed that there was nothing else that could be done" until then. In the immediate aftermath of the June 28 meeting, one of the affected Ryder employees, Patricia Kuehl, in- 5 This document was initiated by` Bettencourt's successor, once re- moved, as terminal manager, Tommy Laughlin Bettencourt managed the postmerger terminal until about August 15 8 Shelton did not 'testify Nor did anyone else about'the decision to convert Staggs ' stigated telephone conversations about the situation with Earl Hunsinger, then with Ryder and now a vice presi- dent with-the Company, and with Leo Suggs. Both con- ceded to her that Staggs' status- as a casual was not known to those at the change-of-operations meeting when it was agreed,' based on her card, to recognize the Union. Keuhl responded, on hearing this from Hun- singer: "Then, you're telling me because of your igno- rance our office had to - suffer and become a union office." Hunsinger replied that he was "sorry to say that is correct," but that it was "a closed matter." - Hunsinger acknowledged, in his testimony: "Yes, we recognize the fact that [it] wasn't a legitimate card ... " To like effect, Bettencourt testified that Staggs' card "should not have been accepted because she was not a regular employee at that time; she was a casual." B. Conclusions It is concluded that the Company violated Section 8(a)(1) and (2) by recognizing and then entering into a labor agreement with the Union as concerns the office clerical employees at its Dallas terminal, and that the Union violated Section 8(b)(1)(A) by its part in those de- velopments. It is, further concluded, however, that the Company did not discriminate against its employees in violation of Section 8(a)(3) by entering into the agree- ment, inasmuch as the agreement did not have a union- security provision;7 and, by the same reasoning, that the Union did not thereby cause the Company to discrimi- nate as contemplated by Section 8(b)(2). That the Company and the Union violated the Act as stated derives from the underlying conclusion that the Union never possessed the requisite valid majority in an appropriate unit of the Company's office clerical employ- ees at any relevant time.8 More particularly, if the par- ties meant to confine the unit to the regular office cleri- cal employees, as seems to have been the case, their reli- ance on the card of a casual, Staggs, to tip the balance was improper. Without that card, of course, the Union had the support of less than a majority of the regulars-9 out of 18-when recognition was accorded in early May. And, if the parties intended that the unit embrace casuals as well as regulars, as appears altogether unlikely despite the dependence on Staggs' card, the Union's support rel- ative to the whole was yet less substantial. That Staggs was made a regular before implementation of the merger did not cure the situation, or render it un- derserving of remedial sanction. The belated acquisition of a majority is of no saving consequence if the earlier recognition was unlawful.9 Moreover, Staggs' conver- 7 E g., Hudson Berlind Corp, 203 NLRB 421, 423 (1973) 8 Neither Respondent contends that the unrepresented Ryder -office clericals were an accretion to the PIE unit , entitling the Union to recog- nition as a matter of law . It is evident that the postmerger commingling of office clerical employees came about through the establishment of a new operation `ather than by any process of accretion Cf Hudson Ber- hnd Corp, 203 NLRB 421, 422 (1973), General Electric Co, 170 NLRB 1272, 1273 (1968) Additionally, as stated in Hudson Berlind Corp, 203 NLRB at 422 "An-accretion is found where a relatively small related op- eration is included in or added to the coverage of a collective-bargaining unit involving a larger group of employees " (Emphasis added) - 9 Garment Workers Union (Bernhard-Altmann Texas Corp) v NLRB, 366 U S 731, 736 (1961) 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion plainly was contrived to lend, colorable legitimacy to • what had gone before-as witness the extraordinary and corner-cutting procedures attending it, Shelton's in- struction to Bettencourt to backdate the action to corre- spond with'. the date on Staggs' union card in keeping with the June 28 Biloxi agreement between the Company and the Union, and - the Company's failure to similarly convert three others at Bettencourt's behest, none of whom ' had signed cards, during the pendency of. thee merger's implementation.- Nor is it exonerative-supposing but not finding such to have been ^ the case-that representatives of both the Company and the .Union:-truly believed Staggs to have been a regular when recognition was-extended: As the Supreme Court has stated:- , - To countenance such an excuse would place in per- missibly careless employer and union hands the 'power to completely frustrate employee realization of the premise of the' Act-that its prohibitions will go-far to' assure freedom' of 'choice and majority rule in employee 'selection of ` representative. We find nothing- in the' "statutory language ''prescribing scienter as an element-of the' unfair labor practices here involved., The act made • unlawful by Section 8(a)(2) As employer .support of 'a minority union. .. More need not be shown; for, even if mistakenly, the, employees' rights have been invad- ed. It follows that, prohibited conduct cannot be,ex- cused by a showing of good faith.' o -- , CONCLUSIONS OF LAW 1.. The Company .violated Section, 8(a)(1).and (2) of the Act-by -recognizing,the,•Union in'May1983, as the collec- tive-bargaining representative of the' office, clerical - em- ployees, ;some, or all, at, its -Dallas terminal-to-be, and by then entering into •a labor agreement covering those em- ployees, effective as of July 1,, 1983. _: - 2. The Union, violated Section 8(b)(1)(A), of. the Act by acceptingI -recognition, and then .entering _into the. labor I greement. 3. The Company did not violate Section 8(a)(3) and the Union did-not ,violate Section. 8(b)(2) as alleged., On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edrt ORDER. A. Respondent ' Ryder/P.I.E.' * Nationwide; Dallas, Texas, its officers; agents, successors, and'assigns;'shall ' 1. Cease and desist from - (a) Recognizing Teamsters Local 745; affiliated with International., Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , (Teamsters 10 Garment Workers' Union (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U S 731, 738-739 (1961) 11 All outstanding motions inconsistent with this recommended Order are denied If no exceptions are filed as provided by Sec 102 46 of the Board's -Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived-for all purposes Local 745) as the collective-bargaining. representative of the office clerical, employees at its Dallas terminal unless and until Teamsters Local 745 has been certified by the National Labor Relations Board as the exclusive bargain- ing representative of those employees. (b) Giving force or effect to the agreement with Teamsters Local 745 that went into effect as of July 11, 1983, or to any renewal, extension, modification, or sup- plement of or.to that agreement. r 2 - (c) Assisting Teamsters Local 745 in any other manner to become the representative of the office clerical em- ployees at its Dallas terminal. (d) In any other manner interfering with, - restraining, or, coercing employees in the exercise of the rights guar= anteed them by Section 7 of the Act. 2. Take this affirmative action, necessary to effectuate the policies of the Act. (a) Withdraw and withhold all recognition from Team- sters Local 745• as the collective-bargaining representa- tive of the office clerical employees at its Dallas terminal unless and until Teamsters Local 745 shall have been duly certified by the National. Labor Relations Board as the exclusive representative of those employees. (b) To any extent that the terms and conditions of em- ployment prescribed by the aforesaid agreement with Teamsters Local 7,45, or by any renewal, extension, modification, or supplement, of or to that agreement, were and/or are -less advantageous to. its employees than those they enjoyed .to July .11, 1983, reinstate those, pre- vious terms and conditions. . (c) Jointly and -severally with. Teamsters Local 745 make.its employees whole for any loss of earnings-and benefits; occasioned by-application of the aforesaid agree- ment with Teamsters Local 745, • or any renewal, exten- sion, modification, or- supplement of or to that agree- ment, -with interest 'on lost earnings. 113, , , . . -, (d) Preserve' and, - on request, make available to 'the Board or'its agents for examiriation'and:copying, all pay- roll -records,' social security payment records, timecards, personnel'records:and reports; and•all - other records nec- essary to analyze the- amount of backpay due under the terms of this Order. . -' `(e) Post at its terminal- in- Dallas, Texas; 'copies of the attached notice marked "Appendix." 14 Copies of the notice, on forms provided by.the Regional Director-for Region 16, after being signed by 'the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous, places including all places where notices to employees are customarily posted. Rea- sonable steps shall-betaken by-,the Respondent to ensure 12 Except as otherwise provided .m'this recommended'Order, however, nothingiherein shall ,be construed- as reiuinng the Company to depart from terms and conditions of employment now in effect. ' 13 Interest shall be computed in accordance with Florida Steel Corp, 231 NLRB 651'(1977)'- - - ' ' ' • • 1 -1 • ' ` ` t- - 1 14 If,thii Order is enforced by: a Judgment of a Umted'Siates Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " RYDER/P.I E NATIONWIDE that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. B. Respondent Teamsters Local 745, its officers, agents, and representatives, shall 1. Cease and desist from (a) Acting as the collective-bargaining representative of the office-clerical employees at the Dallas terminal of - Ryder/P I.E. Nationwide unless and until certified by the National Labor Relations Board as the exclusive bar- gaining representative of those employees. ' (b) • Giving force or effect to the 'agreement with Ryder/P I.E. Nationwide that went into effect as of July 11, 1983, or to any renewal, extension, modification, or supplement of or to that agreement. (c) In any like or related manner restraining or-coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take this affirmative action, to effectuate the poli- cies of the Act. (a) Jointly and severally with Ryder/P.I.E. Nation- wide, make that employer's employees whole for any loss of earnings and benefits occasioned by application of the aforesaid agreement with Ryder/P.I.E. Nationwide; or any renewal, extension,` modification, or supplement of or to that agreement, with interest on lost'earnings.I5 (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."16 Copies 'of the notice, on forms provided by the-Regional Director for Region 16, after being signed by the Respondent's authorized representative,' shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days' in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken ;by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. . • 1. . -, . (c).Notify the-Regional Director,in writing within 20, days from the date of this Order.: what steps the Re- spondent has taken to, comply. . IT IS FURTHER ORDERED that the complaint be dis- missed as concerns those allegations found to be. without merit. . APPENDIX • - ` T i l, ._ . a • - t. 1 '1 NOTICE''To EMPLOYEES , '4 POSTED BY ORDER OF THE _, _ _ -NATIONAL-LABOR RELATIONS BOARD!-). An =Agency' of the United States Government= The National Labor Relations Board has found; that we violated the -.National. Labor Relations r Act and ,has or- dered us to post and abide by this notice. ' Section 7 of the Act gives employees these rights. 603 To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT recognize Teamsters Local 745, affili- ated. with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters Local 745) as the collective-bargaining repre- sentative of the office-clencal employees at our Dallas terminal unless and until Teamsters Local 745 has been certified by the National Labor Relations Board as the exclusive bargaining representative of those employees. WE WILL NOT give force or effect to the agreement with Teamsters Local 745 that went into effect as of July 11, 1983, or to any renewal, extension, modification, or supplement of or to that agreement. WE WILL NOT assist Teamsters Local 745 in any other manner to become the representative of the office-clen- cal employees at our Dallas terminal. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL withdraw and withhold all recognition from Teamsters Local 745 as the collective-bargaining repre- sentative, of the office-clerical employees in 'our Dallas terminal unless and until Teamsters Local 745 shall have been duly"' certified by the National Labor Relations Board as the exclusive representative of those employees. WE WILL, to any extent that the terms and conditions of , employment prescribed by' the aforesaid agreement with 'Teamsters Local 745, or by any renewal extension, modification; or supplement of or to that agreement, were and/or are less advantageous to our employees than those they enjoyed to July 11, 1983, reinstate-those previous terms and conditions. WE WILL, jointly and severally with Teamsters Local 745, make our employees whole for any loss of earnings and benefits occasioned by application of the aforesaid agreement with Teamsters Local 745, or any renewal, extension, modification, or supplement of or to that agreement, with interest on lost earnings. _ .RYDER/P.I.E. NATIONWIDE