Chicago Truck Drivers, Helpers And Warehouse Workers Union (Independent)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) and Signal Deliv- ery Service, Inc. and Leaseway Trucking, Inc. Cases 13-CB-10385 and 13-CB-10546 9 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Upon an unfair labor practice charge filed 14 September 1983 and amended 7 October 1983 by Signal Delivery Service, Inc. (Signal) in Case 13- CB-10385 , the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued on 14 October 1983 a com- plaint against Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) (the Union), alleging that it violated Section 8(b)(1)(A) and (3) of the National Labor Relations Act. Copies of the charge and complaint were duly served on the parties . Thereafter, the Union filed a timely answer admitting in part, and denying in part, the allegations of the complaint. On 26 March 1984 the parties filed a joint motion to transfer the case to the Board without benefit of a hearing before an administrative law judge and submitted a proposed record consisting of the formal papers and the parties' stipulation of facts with attached exhibits. Upon an unfair labor practice charge filed 6 March 1984 by Leaseway Trucking, Inc. (Lease- way or LTI) in Case 13-CB-10546, the General Counsel, by the Regional Director for Region 13, issued on 19 March 1984 a complaint against the Union, alleging that it violated Section 8(b)(1)(A) and (3) of the Act. Copies of the charge and com- plaint were duly served on the parties . Thereafter, the Union filed its answer admitting in part, and denying in part, the allegations of the complaint. On 4 June 1984 all of the parties in Cases 13-CB- 10385 and 13-CB-10546 filed a joint motion to transfer Case 13-CB-10546 to the Board and con- solidate it with Case 13-CB-10385 . The parties in Case 13-CB-10546 also agreed to waive a hearing before an administrative law judge and submitted a proposed record consisting of the formal papers and the parties' stipulation of facts with attached exhibits. On 4 September 1984 the Associate Exec- utive Secretary, by direction of the Board , issued an order granting the motions , approving the stipu- lations, and consolidating the proceedings and transferring them to the Board. Thereafter, the General Counsel and the Charging Parties filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in the case, the Board makes the following FINDINGS OF FACT I. JURISDICTION Signal, a Delaware corporation, is engaged in the business of interstate and intrastate transportation of freight at its facilities in Chicago and Melrose Park, Illinois, where it annually performs services valued in excess of $50,000 for Sears, Roebuck & Co., which is engaged in interstate commerce and which meets the Board's jurisdictional standards other than solely the indirect inflow or indirect outflow standards. Leaseway, an Illinois corporation, is engaged in the business of intrastate transportation of freight at its facility in Elmhurst, Illinois, where it annually performs services valued in excess of $50,000 for Carson Pirie Scott & Co., which is engaged in interstate commerce and which meets the Board's jurisdictional standards other than solely the indi- rect inflow or indirect outflow standards. We find that Signal and Leaseway are employers engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Units The following employees of Signal constitute units appropriate for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act: (a) All truck drivers, helpers, and loaders em- ployed by Signal Delivery Service, Inc. at its facilities located at 1400 West 35th Street, Chi- cago, Illinois and 2065 George Street, Melrose Park, Illinois. (b) All truck drivers, helpers, and loaders em- ployed by Signal Delivery Service, Inc. at its facility located at 2800 South Ashland, Chica- go, Illinois. At all times material herein, the Union has been the designated exclusive collective-bargaining repre- sentative of the units described above and has been recognized as such representative by Signal. Such recognition has been embodied in successive collec- tive-bargaining agreements for each unit, the most recent of which are effective by their terms for the 279 NLRB No. 122 CHICAGO TRUCK DRIVERS (SIGNAL DELIVERY) period 1 April 1982 through 31 March 1985. At all times material herein , the Union, by virtue of Sec- tion 9(a) of the Act, has been, and is, the exclusive representative of the units described above for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The following employees of Leaseway constitute a unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act: All truck drivers and helpers employed by Leaseway Trucking, Inc. in its general cartage division at its facility located in Elmhurst Illi- nois. At all times material herein, the Union has been the designated exclusive collective-bargaining rep- resentative of the unit described above and has been recognized as such representative by Leaseway. Such recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective by its terms for the period 1 April 1982 through 31 March 1985. At all times material herein, the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclu- sive representative of the unit described above for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. B. The Facts Signal has four facilities in the Chicago area from which it hauls freight primarily for Sears, Roebuck & Co. Its "home delivery" service oper- ates out of two facilities, which are located on West 35th Street in Chicago and on George Street in Melrose Park. Its "city shuttle" operation oper- ates out of a facility located at South Ashland in Chicago. A fourth facility, not involved herein, is an interstate hauling operation. Signal is owned 80 percent by Leaseway Transportation Corp.,' a holding company, and 20 percent by Sears. LTI, which operates out of Elmhurst, Illinois, has a "home delivery" service, which performs work for two retail customers. LTI also has a "general cartage" division, which, inter alia, pro- vides drivers for Signal's Ashland location. Some of these drivers have regular assignments to the Ashland operation; some are dispatched to Ashland on a daily basis. LTI is a wholly owned subsidiary of Leaseway Transportation Corp. It is undisputed that Signal and LTI for years have had concurrent collective-bargaining agree- ments with the Union covering separate units of i Leaseway Transportation Corp is not a party to this proceeding 905 employees. Those separate units, as more fully de- scribed above, consist of the following: Signal home delivery employees; Signal city shuttle em- ployees; LTI home delivery employees; and LTI general cartage employees. Each bargaining unit has been covered by a separate collective- bargain- ing agreement, and each unit has had a separate se- niority list.2 The three units whose merger is the object of the Union's current grievance-arbitration demands are Signal's home delivery and city shuttle units and LTI's general cartage unit.3 According to the stlpulatiGn, "no employee at any of these facilities has ever been permitted to `bump' (i.e., transfer with full seniority rights) from one of the seniority lists . . . to any other seniority list." Moreover, during the negotiations for the current collective- bargaining agreements, no proposals were made to merge or dovetail any of the separate seniority lists. On 30 April 1983 employees of Signal's home delivery operation filed a grievance seeking to ex- ercise their seniority rights to transfer to the Ash- land facility. Joint grievance hearings were held between Signal and the Union on 6 June and 17 August 1983. At the first hearing, Signal contend- ed, inter alia, that separate seniority lists had exist- ed for years and that it did not want to alter the existing contractual relationships. The employee- grievants contended that they were seeking a merger not only of the two Signal units, but also a merger with LTI employees. The Union stated its position that the three seniority lists in question should be dovetailed, but that Signal was within its rights to refuse to do so because of the existence of the separate collective-bargaining agreements. At the second hearing, Signal contended, inter alia, that the merger issue was not grievable, but rather was a matter for contract negotiations at the appropriate time. The Union contended that the three seniority lists should be combined into one and that there should be just one contract covering these three aspects of service provided to Sears. The joint grievance committee was deadlocked at the end of the meeting. On 25 August 1983 the Union filed a demand for arbitration with the American Arbitration Association (AAA) on the Signal employees' grievance. Signal, however, re- 2 LTI's home delivery employees actually have been covered by two collective-bargaining agreements, which correspond to the groups of em- ployees who service the two retail customers, but the employees have had a single seniority list 2 A grievance filed in 1981 by employees of LTI seeking to merge the seniority lists of LTI's and Signal's city shuttle units was denied by a joint grievance committee The grievants thereafter filed a suit against Signal, LTI, the Union, and Leaseway Transportation Corp, which is still pending against the Union and LTI in U S district court DECISIONS OF NATIONAL LABOR RELATIONS BOARD fused to participate in the arbitration, and the Union's demand is still pending . As indicated above, Signal filed the charge in Case 13-CB- 10385 on 14 September 1983. About 20 October 1983, an employee of LTI who was a steward at Signal's Ashland facility re- quested a grievance hearing on behalf of another LTI employee who was barred by Signal from the city shuttle operation. The Union thereafter noti- fied LTI of its intention to process this grievance. At a grievance committee meeting between LTI and the Union on 17 January 1984, the Union re- ferred to the Signal employees' grievance of April 1983 as involving substantially the same allegations. LTI took the position, same as Signal's, that the matter was not grievable but rather was a subject for contract negotiations at the appropriate time. The Union contended that the Signal and LTI em- ployees should be considered as one and that the separate seniority lists should be combined into one. No decision was reached at this meeting. On 24 January 1984 the Union filed a demand for arbitration with the AAA on the LTI employ- ees' grievance. By letter dated 7 February 1984, LTI advised the AAA of its position that the grievance was "nonarbitrable and illegal" and that, like Signal, it would refuse to participate in the ar- bitration pending resolution of unfair labor practice charges it was preparing to file with the Board. As indicated above, LTI filed the charge in Case 13- CB-10546 on 6 March 1984. C. Contentions of the Parties The General Counsel, noting that the parties have historically recognized the appropriateness of separate bargaining units and embodied such recog- nition in separate collective-bargaining agreements, contends that the Union's attempt to merge the units is an attempt to compel a midterm modifica- tion of the three collective-bargaining agreements. The General Counsel therefore contends that by using the compulsion of an arbitration proceeding to achieve an end that is properly resolved at the bargaining table, the Union has failed and refused to bargain in good faith with the employers in vio- lation of Section 8(b)(3). The General Counsel fur- ther contends that the Union's efforts to apply the terms of certain collective-bargaining agreements to employees other than those in the unit for which those agreements were negotiated interfered with employee rights in violation of Section 8(b)(1)(A). Service Employees Local 32B-32J (Allied Mainte- nance Corp.), 258 NLRB 430 (1981); Electrical Workers IBEW Local 323 (Active Enterprises), 242 NLRB 305 (1979). The General Counsel additional- ly contends that the Union's grievances, if success- ful, would force Signal and LTI to accept a multi- employer bargaining unit, contrary to the parties' longstanding bargaining history . Finally, the Gen- eral Counsel contends that the Union has no "co- lorable claim" to the merger of the Signal and LTI units based on the common ownership of Signal and LTI or on the fact that they perform work for a single customer , and further that the other factors normally considered in determining whether two employers constitute a single employer-e.g., bar- gaining history, centralization of management-all weigh against the Union's position. The Charging Parties' brief makes the identical arguments as that of the General Counsel. The Union submitted no brief to the Board. D. Discussion An employer and a union may voluntarily agree to merge separate bargaining units, but the enlarge- ment of a bargaining unit is not a mandatory sub- ject of bargaining under the Act. Thus, in the ab- sence of mutual consent, one party may not insist on a change in the scope of an existing bargaining unit.4 In the instant case, it is undisputed that the Union has demanded the arbitration of grievances seeking to merge three historically separate bar- gaining units. We agree with the General Counsel that, in the face of the employers' refusals to par- ticipate in such arbitration, the Union's insistence on arbitration was violative of Section 8(b)(1)(A) and (3) of the Act. In Active Enterprises, above, cited by the General Counsel, the Board found that the respondent union violated Section 8(b)(3) by demanding that negotiations be conducted on a broader basis than the established units, by insisting that the terms and conditions of employment governing employees in the "commercial" unit be applied to employees in the "residential" unit, and by seeking to enforce through the grievance-arbitration procedure the terms of the commercial agreement against work done by employees in the residential unit. In so finding, the Board explained that the violation of Section 8(b)(3) consisted in the respondent's unlaw- ful efforts to enlarge the commercial unit to in- clude the residential unit, i.e., the respondent could not lawfully demand the merger of the two histori- cally separate units without the employer's consent. The Board further found, inter alia, that the re- spondent's conduct in seeking to enforce the com- mercial agreement against employees in the resi- dential unit had the effect of restraining and coerc- 4 Utility Workers Local 111 (Ohio Power Co.), 203 NLRB 230, 238 (1973), cf Allied Chemical Workers v Pittsburgh Plate Glass Co, 404 US 157, 164 (1971) CHICAGO TRUCK DRIVERS (SIGNAL DELIVERY) 907 ing employees in violation of Section 8(b)(1)(A). Allied Maintenance, above, also is applicable. In that case the Board , in finding that the respondent union unlawfully insisted that the employer's "Dalton school" employees were covered by a multiemployer association contract, specifically relied on the fact that the union previously had consented to separate bargaining with the employer for a unit confined to the Dalton school employees. We therefore find , in agreement with the Gener- al Counsel , that the Union violated Section 8(b)(3) by insisting on the arbitration of grievances seeking to merge three separate bargaining units-by dove- tailing seniority lists or otherwise-contrary to the parties' longstanding bargaining agreements. We further find that the Union's efforts to apply the terms of collective-bargaining agreements to em- ployees other than those for which the agreements were negotiated operated to restrain and coerce employees in violation of Section 8(b)(1)(A). Finally, the Union does not contend that its arbi- tration demands have a reasonable basis in fact or law. It is not seeking to arbitrate whether a merger has occurred, but is seeking to force, through arbi- tration, the merger of historically separate units.5 As the Union's arbitration demands are contrary to its statutory collective-bargaining obligations, the Union's arbitration demands have an objective that is illegal under Federal law. Accordingly, Bill Johnson 's Restaurants v. NLRB, 461 U.S. 731, 737 fn. 5 (1983), is not applicable to this case. See Teamsters Local 705 (Emery Air Freight), 278 NLRB 1303 ( 1986). CONCLUSIONS OF LAW 1. Signal Delivery Service, Inc. and Leaseway Trucking, Inc. are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chicago Truck Drivers, Helpers and Ware- house Workers Union (Independent) is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. By insisting on the merger of separate estab- lished bargaining units of Signal employees and Leaseway employees and by insisting on the arbi- tration of grievances which demand the merger of such separate established bargaining units, a non- mandatory subject of bargaining, the Union has re- fused to bargain collectively with Signal and Leaseway and thereby has engaged in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 5 The Union admitted the complaint allegations that it "has insisted on the merger of the units" and that it "has insisted upon arbitration of a grievance which demands the merger of units " 4. By processing grievances and insisting on arbi- tration of grievances demanding the dovetailing of the seniority rights of the separate established bar- gaining units of Signal employees and Leaseway employees, the Union has restrained and coerced employees and thereby has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectu- ate the policies of the Act, including withdrawal of its grievance and arbitration demands which seek to compel the merger of separate established bar- gaining units by dovetailing separate seniority lists or otherwise. See Allied Maintenance Corp., above at fn. 3. ORDER The National Labor Relations Board orders that the Respondent, Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent), Chi- cago, Illinois, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Refusing to bargaining collectively with Signal Delivery Service, Inc. and Leaseway Truck- ing, Inc. by insisting on the merger of separate es- tablished bargaining units of Signal employees and Leaseway employees, and by insisting on arbitra- tion of grievances which demand the merger of such units, a nonmandatory subject of bargaining. (b) Restraining and coercing employees in sepa- rate established bargaining units by processing grievances and insisting on arbitration of griev- ances demanding the dovetailing of the seniority rights of employees in such separate established bargaining units. (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Withdraw its grievance and arbitration de- mands, which seek to compel Signal and Leaseway to merge their separate established bargaining units by dovetailing separate seniority lists or otherwise. (b) Post at its office and meeting halls in Chica- go, Illinois, copies of the attached notice marked 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Appendix."s Copies of the notice, on forms pro- vided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customari- ly posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (c) Sign and return to the Regional Director suf- ficient copies of the notice for posting by Signal Delivery Service, Inc. and Leaseway Trucking, Inc., if willing, at all places where notices to em- ployees are customarily posted. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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. WE WILL NOT refuse to bargain collectively with Signal Delivery Service, Inc. and Leaseway Truck- ing, Inc. by insisting on the merger of their sepa- rate established bargaining units, and by insisting on arbitration of grievances which demand the merger of such units, a nonmandatory subject of bargaining. WE WILL NOT restrain or coerce you by process- ing grievances and insisting on arbitration of griev- ances demanding the dovetailing of the seniority rights of employees in separate established bargain- ing units. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL withdraw our grievance and arbitra- tion demands which seek to compel Signal and Leaseway to merge the separate established bar- gaining units by dovetailing separate seniority lists or otherwise. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CHICAGO TRUCK DRIVERS, HELPERS AND WAREHOUSE WORKERS UNION (INDEPENDENT)