United States Steel Corp.

UNITED STATES STEEL CORP. United States Steel Corporation and Brotherhood of Teamsters and Auto Truck Drivers, Local 85, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America and Warehouse Union Local 6, ILWU, Party in Interest. Case 20-CA-19446 24 June 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 30 August 1985 Administrative Law Judge Jay R. Pollack issued the attached decision. The Party in Interest and the Respondent, respectively, filed exceptions and supporting briefs, and the Gen- eral Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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, i and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United States Steel Corporation, Antioch, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 While we agree with the judge's finding that the Respondent 's truck- drivers at the Antioch facility do not constitute an accretion to the exist- ing bargaining unit of warehouse employees , we do not adopt the judge's analysis that the "controlling factor" here is the long bargaining history of separate units of warehouse employees and truckdrivers Rather, we find, after examining all of the accretion factors traditionally considered by the Board, that the two employee groups continued to maintain their separate identities despite certain changes made in the drivers' duties See, e g, Great Atlantic & Pacific Tea Co, 140 NLRB 1011, 1021 (1963) We additionally find it unnecessary to our accretion analysis to pass on the judge's finding that the Respondent intended to minimize jurisdiction- al disputes, that the Respondent had "no objection " to hiring Leaseway's drivers when it moved its facilities to Antioch, that the Respondent was pleased with Leaseway's drivers' performance, and that the Respondent sought other drivers to serve its Antioch facility only when it became apparent that Leaseway's drivers might not be willing to work under Local 6's contract with the Respondent Jonathan J. Seagle and Jolane A. Findley, Esqs., for the General Counsel. 837 S. G. Clark, Esq., of Pittsburgh, Pennsylvania, and Leo M. Pruett, Esq., of San Francisco, California, for the Respondent. Duane B. Beeson, Esq. (Beeson, Toyer & Silbert), of San Francisco, California, for the Charging Party. Robert Remar, Esq. (Leonard & Carder), of San Francis- co, California, for the Party in Interest. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at San Francisco, California, on May 29 and 30 and June 3, 1985. Pursuant to a charge filed against United States Steel Corporation (Respondent) on January 15 and amended on February 21, 1985, by Brotherhood of Teamsters and Auto Truck Drivers, Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Charging Party or Local 85) the Regional Director for Region 20 of the National Labor Relations Board issued a complaint and notice of hearing on March 8, 1985, al- leging in substance that Respondent engaged in certain violations of Section 8(a)(1), (2), and (3) of the National Labor Relations Act (the Act). Warehouse Union Local 6, ILWU (Local 6) was named as a party in interest and participated in the case as a full party. All parties have been afforded full opportunity to par- ticipate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Based on the entire record, on the briefs filed on behalf of the parties, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION Respondent is a Delaware corporation with an office and place of business in Antioch, California, where it is engaged in the warehousing and delivery of steel prod- ucts. During the 12 months preceding the issuance of the complaint, Respondent purchased and received goods and services valued in excess of $50,000 directly from suppliers located outside the State of California. The complaint alleges, the answer admits, and I find that at all times material Respondent was an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, the answer admits, and I find that at all times material Local 85 and Local 6 were each a labor organization within the meaning of Section 2(5) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For many years, Respondent had maintained a ware- house at San Francisco, California, where it received, stored, and shipped steel brought from other facilities 280 NLRB No. 98 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and delivered the finished products to end-users' within the area serviced from the San Francisco facility. In Jan- uary 1984, under threat of eminent domain, Respondent agreed to sell its San Francisco warehouse to the city of San Francisco. By the terms of its sales agreement with the city, Respondent retained the right to remain in the San Francisco warehouse as a tenant until March 1, 1985. Respondent decided to relocate the warehouse to Antioch, California, to a vacant facility of Respondent's American Bridge Division. Since 1973 Respondent has had a series of collective- bargaining agreements with Local 6 covering its ware- house employees at the San Francisco facility. Respond- ent has been a member of the Industrial Employers and Distributors Association (IEDA) and through the IEDA has been a party to a series of collective-bargaining agreements with Local 6, the most recent of which was to expire on May 31, 1985. The collective-bargaining agreement between Respondent and Local 6 covered the following appropriate bargaining unit: All general warehousemen, order fillers (including part time burning and sawing, fork-lift and remote crane operators), banding machine operators, wire rope handlers, cage and stacker crane operators, head power plate, sheet shear, and saw band opera- tors, cut to length line, slitters, strapping rewinders, burners and flame cutters, working foremen A, working foreman B, maintenance men A and B at the Employer's Harrison Street, San Francisco, California facility. Respondent did not employ truckdrivers at its San Fran- cisco warehouse. Rather, it utilized leased trucks with drivers, common carriers, and customer vehicles to pick up and deliver the products it handled. Approximately 60 percent of the deliveries were made with leased trucks, the drivers of which were employed by Leaseway Personnel Corporation (Leaseway).2 In United States Steel Corp., 270 NLRB 1318 (1984), the Board found that Respondent was not a joint employer of the truckdrivers employed by Leaseway. Leaseway's truck- drivers were represented by Local 85. This case arises out of the transfer of Respondent's op- erations from San Francisco to Antioch. On August 24, 1984, Respondent and Local 6 agreed to an addendum to the collective-bargaining agreement which covered the terms and conditions of employment of the warehouse employees after transfer from San Francisco to Antioch. The agreement included truckdrivers in the bargaining unit. Respondent, contrary to the practice at its San Francisco warehouse, directly employed drivers at Anti- och. The General Counsel and Local 85 allege that Re- spondent unlawfully recognized Local 6 as the bargain- ing representative of the truckdrivers because the truck- drivers were not a proper accretion to the existing ware- house units Further, because the bargaining agreement ' Machine and sheet metal shops, fabricators, builders, etc ' Previously named Industrial Personnel Corporation 9 There is no contention that the extension of the collective-bargaining agreement for the warehouse unit at San Francisco to the warehouse at Antioch was unlawful contains a union-security clause, the General Counsel and Local 85 contend that employees were unlawfully required to join or pay dues to Local 6. Respondent and Local 6 contend that the truckdrivers were a proper ac- cretion to the warehouse unit and that therefore recogni- tion of Local 6 was lawful. The complaint further alleges that Respondent unlaw- fully conditioned the employment of the Leaseway truckdrivers for jobs at the Antioch facility on the driv- ers joining Local 6 and that Respondent unlawfully re- fused to hire the Leaseway truckdrivers because of the drivers' refusal to accept Local 6 as their bargaining rep- resentative. Respondent contends that its inclusion of a union security was lawful and that it did no more than inform employees of a lawful union-security clause. B. The Facts As previously indicated, Respondent decided to move its warehouse operation from San Francisco to Antioch, a distance of approximately 45 miles. In August 1984 representatives of Respondent met with representatives of IEDA in order to form proposals to offer Local 6 with respect to the Antioch facility. Respondent's repre- sentatives were given a copy of an agreement between Local 6 and Tricon Steel Service, a competitor of Re- spondent, negotiated by IEDA on behalf of Tricon Steel. The agreement contained a wage and benefit package much less costly to the Employer than that contained in the 1982-1985 agreement between Respondent and Local 6. Further, the Tricon Steel agreement included truck- drivers in the bargaining unit at wage rates substantially lower than that received by the drivers under the Local 85-Leaseway bargaining agreement. On August 14 Respondent's representatives and IEDA representatives met with representatives of Local 6 to discuss an agreement for the Antioch facility. The man- agement negotiators told the Local 6 representatives that to open the Antioch facility, Respondent had to substan- tially reduce its labor costs. In line with that goal, Re- spondent stated that it had to eliminate restrictive past practices at the San Francisco facility. More specifically, Respondent wanted more flexibility in the assignment of employees and wanted relief from the restrictions caused by job classifications and union ,jurisidction. The Tricon Steel agreement was offered to Local 6 as a starting point. The Local 6 representatives voiced opposition to the cutbacks in wages and fringe benefits. With regard to the truckdrivers, the Local 6 representatives agreed to include the drivers in the bargaining unit, if the other terms of a contract could be agreed on. On Thursday, August 16, Respondent and Local 6 agreed on a collec- tive-bargaining arrangement. There were two agree- ments. One agreement covered the terms and conditions of employment (including truckdrivers) as an addendum to the agreement of 1982-1985. The second agreement provided that nine named warehouse employees would transfer to the Antioch facility at wage rates equal to what they were earning at San Francisco (as opposed to the lower rates provided for in the new bargaining agreement). The remaining warehouse employees (ap- proximately 16) would receive a severance allowance UNITED STATES STEEL CORP. and a preference in hiring as warehouse employees at the Antioch facility. The Local 6 negotiators agreed to rec- ommend ratification of these agreements to the union membership. The agreements were ratified by the mem- bers of Local 6 and were subsequently executed about August 24, 1984. From early November 1984 to March 18, 1985, the Antioch and San Francisco facilities were operated si- multaneously during what was called a "transition period." Within this transition period, Respondent slowly cut down the operations at San Francisco while at the same time increasing operations at Antioch. In the year prior to the close of Respondent's San Francisco facility on March 18, six truckdrivers em- ployed by Leaseway were working at that facility, all of whom were members of Local 85. One of the drivers, Bill Nieto, the night loader of the San Francisco facility, was hired for the same job at the Antioch facility. The other five drivers, William Locke Sr., Fred Knott, Frank Gloistein, Frank Thompson, and Roy E. Backlund, are all alleged as discriminatees on the ground that their em- ployment was unlawfully conditioned on joining Local 6 and that they were denied employment because of their refusal to accept representation by Local 6. On the morning of August 22, 1984, Gloistein told Richard Padovani, traffic manager,4 that he had heard that the warehouse employees had taken a vote on an ad- dendum to their contract with Respondent, which in- cluded truckdrivers at the Antioch facility. Padovani an- swered that this was true. Gloistein then telephoned Locke Sr.,5 a shop steward for the truckdrivers. Glois- tein informed Locke Sr. of what he had dust learned and then gave Padovani the telephone. Locke Sr. asked Pa- dovani, "What's going on?" and Padovani confirmed that the warehousemen and drivers would be in the same bar- gaining unit. 6 Padovani, on the other hand, testified that he informed the truckdrivers that the decision had been made to employ drivers directly and to cover them under the contract with Local 6. Locke Sr. testified that on September 18, he spoke to Bugh Hustead, Respondent's district manager, in the warehouse at San Francisco. Locke Sr. asked if the rumors were true that when Respondent moved to Anti- och, the drivers would be laid off, and Hustead replied that "Yes, it was true " Locke Sr. then asked why Hus- tead had not come to him so that he could inform the drivers. Hustead said he would phone Respondent's of- fices in Chicago and get back to Locke Sr. On the morning of October 18, 1984, Locke Sr. again spoke to Hustead and asked what Hustead had learned * There is no dispute that Padovani is an agent of Respondent and a pervtsor within the meaning of Sec 2(11) of the Act William Locke Jr was employed by Respondent as a warehouse su- nntendent athe! Francisco and is now employed in the same capacity Antioch There is no dispute that Locke Jr is an agent of Respondent d a supervisor within the meaning of Sec 2(11) of the Act. In June 1984 Locke Sr and Gloistein had been asked on several oc- tons by Padovani and Bill Frank, Respondent's office supervisor, if the rivers were going to move with Respondent to Antioch Both drivers Maid that they would be going to Antioch and both supervisors indicated that they were pleased that the drivers would be moving with Respond- "t 839 from Chicago. Hustead said the bottom line was cost. Hustead said he had not yet informed Leaseway of the layoffs. Locke Sr. asked why he could not tell the driv- ers and Hustead responded that he did not know when the drivers would be laid off but indicated it might be January. Hustead stated that Respondent was "pleased with the drivers' performance and loyalty." On October 23, 1984, D. C. Bencie, Respondent's divi- sion manager, sent a letter to Richard Modic, Leaseway's director of its western region and the super- visor of the drivers at the San Francisco warehouse, that Respondent anticipated closing its warehouse in 1985, that the new Antioch facility would employ its own drivers, and that the services of Leaseway would no longer be needed.' The letter further stated that during the transition period from San Francisco to Antioch, the number of Leaseway truckdrivers working for Respond- ent would be reduced, beginning in late November 1984. After receiving notice from Respondent, Modic called Bencie about the timing of the layoffs. Modic asked Bencie whether the Leaseway drivers were going to have the opportunity to apply for employment as drivers at the new Antioch facility. Bencie answered that he could not make that decision and that such a decision would be made at a later date. On November 14, 1984, Padovani contacted the Em- ployment Development Department (the unemployment office) of the State of California in Antioch and placed a job order for three or four truckdrivers for the Antioch facility. In placing the order, Padovani did not inform the unemployment office that the position was covered by a union contract nor did Padovani inform the San Francisco drivers that Respondent was doing its hiring through the unemployment office in Antioch. On November 30 Thomas Shurtleff, Leaseway's area manager, met with the drivers of the San Francisco warehouse. Shurtleff informed the drivers that Respond- ent was canceling its account with Leaseway and that the drivers would lose their jobs when Respondent moved to Antioch Fred Knott testified that in late November or early December he asked Padovani if Knott was going to An- tioch. Padovani said that Knott would "have to join Local 6 and work for $10 an hour, if he wanted to work in Antioch." On hearing these conditions, Knott re- sponded that he would not go. Padovani did not specifi- cally deny this conversation. Padovani, however, testi- fied that at the end of December, after he advised Knott that the wages were covered by Respondent' s agreement with Local 6, Knott declined a job. Knott told Padovani that Knott was close to retirement and did not want to jeopardize his pension with the Teamsters Union. On December 11 Padovani went to the unemployment office in Antioch and interviewed several applicants, in- cluding Henry Williams, for truckdriver positions at An- tioch. Williams testified that Padovani told him that the job was a "union job" and that Williams "would have to join the union." Padovani asked Williams if he had any 7 Although Respondent employed its own drivers at the Antioch facili- ty, it continued to lease the same Leaseway vehicles 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD objection to working as a union member and Williams answered that he did not. Backlund testified that during the middle of December he spoke to Padovani alone about working in Antioch. Padovani asked Backlund if he was going to work in An- tioch, join Local 6, and take a cut in pay. Backlund told Padovani that he only had one car and that his wife needed the car to babysit for their grandchildren. Back- lund told Padovani that he would need a little time to talk it over with his wife. Three or four days later, Back- lund spoke to Padovani again and said that he and his wife decided that they would take the job in Antioch for a year and then Backlund would retire. Padovani an- swered that it was too late and that Padovani had al- ready notified Respondent's offices in Chicago that Backlund was not going to Antioch. Backlund asked why Padovani had done so and Padovani answered, "Well, Roy, I had to do it." Padovani testified that in late December Backlund said he would have to talk the matter over with his wife. According to Padovani, Back- lund did not indicate any decision to work at Antioch until January 8. On December 17, after speaking with Padovani, Shurt- leff notified drivers Nieto, Gloistein, Knott, Backlund, and Locke Sr. that Respondent would like to offer them the opportunity to submit applications for work at the new operation with a deadline of December 21 to submit employment applications. On December 19 Locke Sr. picked up job applications at Padovani's office and asked Padovani for an extension of the December 21 deadline because two of the drivers were off from work. Pado- vani gave Locke Sr. an extension until December 28 for the drivers to file their applications. On December 21 Locke Sr. turned in his application to Padovani. On December 26 or 27 Nieto turned in his application to Padovani. According to Nieto, Padovani told Nieto that he would have to change unions and that the starting salary would be $10 an hour. Padovani asked Nieto what shift he would prefer, night or day shift, indi- cating that Nieto was the only Leaseway driver that would be going to Antioch. Nieto replied that he would prefer to work the night shift. Padovani agreed to allow Nieto to work the night shift at Antioch.8 On December 27 Gloistein gave his job application to Padovani and said that he was turning in the application to show that he was interested in the job and that he wanted to go to Antioch. However, Gloistein said he wanted to remain a member of the Teamsters and wanted to keep the wages and benefits he was then re- ceiving. Padovani answered the terms for accepting the job at Antioch would be to join Local 6 and work for $10 an hour, according to the contract between Re- spondent and Local 6. Gloistein answered that he "couldn't accept the job under those conditions." On December 28 Locke Sr., Backlund, Knott, and Gloistein met with Padovani. Locke Sr. handed Pado- 6 I have decided to credit Nieto's testimony over that of Padovani First, Nieto was a much more impressive witness than Padovani . Second, Padovani's notes of this conversation more clearly resembles Nieto's testi- mony than that of Padovani Third, Padovani's testimony is also in con- flict with that of other credible witnesses, particularly Locke Sr and Wil- liams vani the job applications for Knott and Backlund. Pado- vani told the drivers that the conditions were that the drivers would have to join Local 6 and that the wages would be $10 an hour. The drivers objected to these conditions and Locke Sr. told Padovani that the drivers would have to get advice from their union representa- tives. The testimony of Locke Sr., Gloistein, Backlund, and Knott is credited over that of Padovani. Sometime during this period in late December, driver Frank Thompson9 was asked by Padovani whether Thompson wished to fill out an application for the Anti- och facility. After Padovani said that Thompson would have to join Local 6, Thompson answered that he did not want to lose the benefits secured under the Team- sters contract and have to "start all over again." Thomp- son added that there was nothing to stop Respondent from deciding in another 5 years that the drivers would have to "join the nurses' union or something like that, and cut your pay to $5 an hour." Padovani did not spe- cifically deny Thompson's testimony and Thompson's testimony is credited. Padovani denied that he met with the drivers as a group on December 28. Rather, Padovani testified that he met individually with Locke Sr., Backlund, Knott, and Gloistein on December 28 and that he met with Nieto on December 27 or 28. Padovani denied that he told the drivers that they had to join Local 6. Rather, according to Padovani, he advised the drivers that the job conditions including wages and benefits were cov- ered by Respondent's agreement with Local 6. Accord- ing to Padovani, only Nieto accepted a job. Locke Sr., Knott, and Gloistein declined a job and Backlund said that he had to talk to his wife. Backlund made no further response until January 8. Thompson made no job appli- cation. As indicated earlier, I credit the testimony of the drivers, particularly Nieto and Locke Sr., over the testi- mony of Padovani. On January 7 drivers Locke Sr., Knott, Backlund, and Gloistein were advised by representatives from Local 85 to agree to work at Antioch under the conditions set forth by Padovani-joining Local 6 and accepting wages of $10 an hour. In the meantime, Local 85 would pursue other means of obtaining relief. On January 8 Locke Sr., Backlund, Knott, and Gloistein went to Padovani's office and told Padovani that they would work at Antioch and accept the condi- tions of joining Local 6 and working for $10 an hour. Padovani answered that he would check with Respond. ent's Chicago offices and get back to the drivers later, When the drivers again approached Padovani, Padovani told them that he had learned from the Chicago office that it was too late to hire the drivers because Respond- ent had already made a commitment to hire people from the Antioch unemployment office. Locke Sr. asked Pa- dovani if the drivers were qualified and Padovani did not respond. Then Locke asked Padovani if he had hired anyone and Padovani said, "No." Padovani admitted that on this date he told the drivers that they could not be 9 Thompson worked as a fill-in driver for the Leaseway drivers at R-. spondent's San Francisco facility, filling in when drivers were absent, sick, or on vacation UNITED STATES STEEL CORP. hired because the jobs were already, committed. Accord- ing to Padovani, on January 7, he had orally informed the unemployment office of the names of four hires. Al- though regarding one of these hires, Ron Haynes, Pado- vani later changed his mind. On January 14, 1985, Padovani "officially" informed the unemployment office that Respondent would hire Henry Williams, Bob Savoie,10 and Dan Watts as drivers at Antioch, one to begin the following week and the other two to begin at the end of January. On January 25 drivers Nieto and Thompson were laid off from their jobs at the San Francisco warehouse. On January 31 Nieto began working as the night loader at the Antioch facility. Truckdriver Bob Savoie began work on February 1. On February 7 Locke Sr , Gloistein, Knott, and Backlund were laid off from the San Francisco facility. On February 11 Dan Watts and Henry Williams began work at the Antioch facility. Wil- liams testified that prior to going to work Padovani told him he had to join Local 6 and Padovani instructed him to see Fernandez of Local 6. In mid-February, Padovani interviewed and hired driver Greg Sylvester to fill the position left vacant by his decision not to hire applicant Ron Haynes, an unem- ployment office. applicant. Sylvester was laid off after working at Antioch for approximately 2 weeks. Padovani had no explanation for the hire of Sylvester as opposed to one of the former Leaseway drivers. After laying off Sylvester on March 5, Padovani telephoned Locke Sr. and told him that he was putting another truck on at Antioch. Padovani asked Locke Sr. if he would come and reapply for a job at Antioch, as he was the senior driver from San Francisco. Locke Sr. agreed to come in again and see Padovani. On March 7 Locke Sr. met with Padovani, but declined to fill out a job ap- plication. Locke Sr. said he was forced into retirement and that he could only work 49 hours a month. The next day, Padovani telephoned Frank Gloistein and asked Gloistein to reapply for a job as there was going to be an opening for a truckdriver. On March 11 Gloistein spoke to Padovani and asked what the terms of the job were. Padovani answered that they were "the same, . that [Gloistem] would join Local 6, and the pay was $10 an hour." Gloistein said he would have to talk with the Local 85 union representatives. The next day, March 12, Gloistein telephoned Padovani and accepted the job. After passing a physical exam, Gloistein began work at Antioch on March 18. Of the five drivers at the Antioch facility, Williams, 'Watts, and Savoie have paid dues to Local 6 beginning an February 1985. Nieto paid dues to Local 6 but did not join that Union. Gloistein apparently has not joined or paid dues. C. The Facts Pertaining to the Accretion Issue Approximately 20 warehousemen were employed at San Francisco when the relocation to Antioch began in November 1984 and approximately 16 of the employees Went to work at Antioch between November 1984 and 10 Savoie had driven for Respondent as an employee of Cal-Western Company on a route from Los Angeles to San Francisco in 1981 841 March 1985. By the time of the hearing in this case, there were approximately 30 warehouse employees at Antioch. There were four truckdrivers and one night loader working full time at San Francisco in 1984. Since March 1985 there have been four truckdrivers and one night loader working full time at Antioch. i 1 The cus- tomers of Respondent remain substantially the same as at San Francisco. The same materials are processed and shipped to the same customers. The geographical area in which Respondent delivers its products remains the same at Antioch as it was at San Francisco. The supervisors- Padovani, traffic manager, Bill Frank, office manager, Locke Jr., warehouse superintendent-remain the same. Larry Freeman, a warehouseman at San Francisco, is now a warehouse foreman at Antioch. As indicated earlier, the truckdnvers at the' San Fran- cisco warehouse were employed by Leaseway and not by Respondent. The drivers were supervised by Leaseway's Richard Modic. The drivers received their bills of lading and other documentation controlling their deliveries and pickups from Padovani. When customers complained or raised questions concerning the merchan- dise and billing or delivery, the drivers relayed phone complaints and questions to Padovani, who in turn con- tacted the appropriate Respondent's office for dealing with the matter (sales, finance, billing, production, etc.). When a Leaseway truck had mechanical problems, the driver contacted Padovani,, who in turn contacted Leaseway. When a driver was authorized to pay for a minor repair away from home Padovani reimbursed the driver and recouped the amount from Leaseway, which was advanced later. After July 1981 Modic, rather than Padovam, resolved driver complaints and secured casual or replacement drivers. When the drivers arrived at work, their trucks were usually loaded and they were able to leave the ware- house to. make their -deliveries. At the San Francisco warehouse the drivers were not permitted to drive fork- lifts to load their trucks. That work was performed by warehousemen. At the Antioch facility, the truckdrivers drive a forklift to load their trucks, on those occasions when the trucks are not completely loaded the night before. This difference is one of the reasons Respondent sought to place the drivers in an overall warehouse unit. Once on the road, 'the drivers travel unaccompanied to make deliveries: They seldom return to the warehouse prior to the end of their shifts. On those occasions when a driver returned to the San Francisco warehouse prior to the end of his shift, he was not required to work in the warehouse. However, at the Antioch facility, if a driver returns prior to the end of his shift, he is given a job assignment by Padovani or Locke Jr. in the ware- house. This is another reason Respondent sought to place the drivers in an overall warehouse unit. The warehouse employees' jobs at Antioch consist of shear operators, slitter operators, cut-to-length line oper- ators, crane operators, and order fillers. ' None of these jobs have any type of licensing requirements . Half of 11 As noted previously, the Antioch truckdrivers are employed direct- ly by Respondent as opposed to the San Francisco drivers, who were employed by Leaseway 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these employees work on the day shift and half on the night shift. Until April 1985 none of the warehouse em- ployees possessed a truckdriving license. The one ware- houseman, hired in April 1985, with a truckdriver's li- cense had not driven a truck for Respondent until the in- stant hearing. The warehouse employees are supervised by Locke Jr. (day shift) and Larry Freeman (night shift), while the truckdrivers are supervised by Padovani. However, Pa- dovani has filled in or substituted for Locke Jr., and Locke Jr. has filled in and substituted for Padovani. The only supervisor working the night shift with Nieto is Freeman, the warehouse foreman. Finally, the parties stipulated that Local 85 did not at any time demand recognition as the bargaining represent- ative of Respondent's truckdrivers employed at the Anti- och warehouse. D. Conclusions Regarding the Recognition of Local 6 It is well settled that an employer violates Section 8(a)(2) and (1) of the Act when it extends coverage of an existing collective-bargaining agreement to a group of employees not previously covered by that agreement and prior to the hire of such employees.12 Safeway Stores, 256 NLRB 918 (1981). The exception to this principle is where the new group of employees is a proper accretion to the existing bargaining unit. Id. Singer Co., 198 NLRB 870 (1972). Kroger Co., 211 NLRB 363, 377 (1974); Wackenhut Corp., 226 NLRB 1085, 1089 (1976). The parties agree that the central issue is whether the truckdrivers were a proper accretion to the warehouse unit. In determining whether a new job classification constitutes an accretion to an existing unit , the Board considers a variety of factors, including functional inte- gration, shared supervision, relative job skills, physical proximity, and bargaining history. NLRB v. Retail Clerks Local 770, 399 F.2d 501, 502-503 (9th Cir. 1968); Safeway Stores, supra; Dura-Vent Corp., 235 NLRB 1300 (1978). Administrative Law Judge Shapiro in his decision in Westwood Import Co.13 discussed certain principles appli- cable to the instant accretion issue: "An accretion is, by definition merely the addi- tion of new employees to an already existing group." N.L.R.B. v. Food Employers Council, Inc., and Retail Clerks Union, Local 770, 399 F.2d 501, 502 (9th Cir. 1968). Employees so added to an exist- ing bargaining unit are regarded as a part of that unit. See Westinghouse Electric Corp. v. N.L.R.B., 440 F.2d 7 (2d Cir. 1971). In deciding whether a new group of employees is an accretion to an exist- ing bargaining unit, the Board not only considers such factors as functional integration, level of man- 12 Sec 8(a)(l) and (2) of the Act provides in pertinent part (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; (2) to dominate or interfere with the formulation or administration of any labor organ.zahon or contribute financial or other support to it 13 251 NLRB 1213, 1220 (1980), enfd 681 F 2d 664 (9th Or 1982) See also Auto Processing Co, 258 NLRB 854 (1981 ), Save-It Discount Foods, 263 NLRB 689, 693 (1982) agement control, similarity of working conditions, bargaining history, employee interchange, job skills, and physical separateness but also gives special weight to the interests of the unrepresented employ- ees in exercising their own right to self-organiza- tion. See Food Employers Council, supra at 501, 504. Hence, even though an overall bargaining unit may be appropriate if the issue is raised in the context of a petition for a representation election, the Board will not, "under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing those employees the opportunity of expressing their preference in a secret-ballot elec- tion or by some other evidence that they wish to authorize the union to represent them." Melbet Jew- elry Co., Inc., and I.D.S.-Orchard Park, Inc., 180 NLRB 107, 110 (1969). And, "when the relevant considerations are not free from doubt," the Board and courts are in agreement that "it would seem more satisfactory to resolve such close questions through the election process rather than seeking an addition of the new employees by a finding of ac- cretion" because "as a general rule, the accretion doctrine should be applied restrictively since it de- praves the new employees of the opportunity to ex- press their desires regarding membership in the ex- isting unit." Westinghouse Electric Corp. v. N.L.R.B., 440 F.2d 7, 11, and cases cited therein. A recent case decided by the United States Court of Appeals for the Ninth Circuit, Machinists v. NLRB,14 il- lustrates how reluctant the Board and the courts are to find an accretion in order that the employees be given an opportunity to express their desires concerning represen- tation. In affirming the Board's decision that newly hired mechanics at an employer's foreign car dealership did not constitute an accretion to a bargaining unit of me- chanics at the employer's domestic car dealership, the court stated that the fact that a group of new employees can itself constitute a separate bargaining unit is itself suf- ficient to mandate a refusal to accrete these employees to an already existing unit. Id. at 1481. But it clearly cannot be a necessary precondition to a nonaccretion finding that a group of employees sought to be accreted constitutes by itself an appropriate unit, because there are other states of affairs that might likewise properly lead to a nonaccretion finding. Id. The court then listed two situa- tions appropriate to a finding of no accretion: ( 1) where the employees may be an accretion to a different unit and (2) where the combined old and new employees would be the only proper unit but the Board finds that the employees should be given an opportunity in a repre- sentation election to express their wishes concerning rep- resentation in the combined unit or remaining unrepre- sented. Thus, in the instant case an examination of functional integration, shared supervision, relative job skills, and physical proximity would not be helpful. The controlling 14 759 F 2d 1477 (9th Cir 1985), affg 270 NLRB 311 (1984) UNITED STATES STEEL CORP. factor here ' is' the long bargaining history of separate units of warehouse employees and truckdrivers. The bar- gaining history establishes that a unit of truckdrivers may constitute a separate appropriate unit. In any event, it is the employees, not Respondent, who should decide the question of representation. Where, as here, the drivers have' been represented in a separate unit by one labor or- ganization, the' Board would not lightly impose bargain- ing in a combined unit represented by another labor or- ganization. The Board could and should permit the truckdrivers to decide their own representation. Re- spondent's premature recognition of Local 6,has prevent- ed the truckdrivers from doing so. The fact that the bargaining history regarding truck- drivers is with Leaseway, a subcontractor, rather than with Respondent, makes no difference. Respondent was well aware that the truckdrivers had been represented by Local 85 for many years. Respondent intended to mini- mize jurisdictional disputes by simply dealing with one labor organization. Further, Respondent had no objec- tion to the continued utilization of these truckdrivers when it commenced operations in Antioch. Rather, Re- spondent was pleased with the drivers' performance and their early expression of a willingness to move to Anti- och. Respondent- only sought new truckdrivers when it became apparent that the drivers might not be willing to work under the conditions set forth in the agreement be- tween Local 6 and Respondent covering the Antioch fa- cility. Similarly, I fmd no significance in the fact that Local 85 made no demand for recognition. Respondent's premature recognition of Local 6 was a fait accompli. Only by filing a timely charge could Local 85 challenge that recognition. The fact that Local 85 did not also demand recognition or file a representation petition does not alter the situation. Local 85's success in this unfair labor practice case paves the way for a representation case to be brought by Local 85, Local 6, the employees, or Respondent. In sum, I find that Respondent unlawfully offered pre- mature or prehire recognition to Local 6 concerning the truckdrivers to be hired at the Antioch facility and that the truckdrivers are not a lawful accretion to the ware- house unit at * the Antioch facility. Accordingly, I find ithat Respondent has interfered with the employees' Sec- tion 7 rights to self-organization and has violated Section 8(a)(2) and (1) of the Act. By including in the prehire contract provisions for union security, Respondent has violated Section 8(a)(1), (2), and (3) of the Act. See R.J.E. Leasing Corp., 262 NLRB 373 (1982). See also Monfort of Colorado, 256 NLRB 612 (1981), enfd. 683 F.2d 305 (9th Cir. 1982). E. Conclusions Regarding Joining Local 6 as a Condition of Employment As indicated earlier, the credited testimony establishes that Padovani told driver Fred Knott that Knott would have to join Local 6 and accept a wage rate of $10 an hour, if Knott wanted to work in Antioch. Similarly, Pa- dova, in asking Roy Backlund if Backlund wanted to work in Antioch, Padovani said Backlund would have to join Local 6 and work for $10 an hour. During Decem- ber Padovani told Bill Nieto that he would have to 843 change unions and that the starting salary would be $10 an hour. Padovani told Frank Gloistein that terms for working in Antioch were to join Local 6 and work for $10 an hour. On December 28 Padovani told Locke Sr., Backlund, Knott, and Gloistein that the conditions for the job were to join Local 6 and work for $10 an hour. Sometime during this same time period, Padovani 'told driver Frank Thompson that Thompson would have to join Local 6. Further, during February 1985,'Padovani told driver-applicant Henry Williams that Williams had to join Local 6. As indicated earlier, Padovani's testimo- ny that he simply told the drivers that the conditions of employment were covered by Respondent's agreement with Local.6 is not credited. It having been found that Respondent's extension of its collective-bargaining agreement with Local 6 to cover the drivers was an unlawful prehire agreement and that the union-security clause of that contract was, therefore, unlawful, it follows that Padovani violated Section 8(a)(1) and (3) of the Act by conditioning employment of drivers by Respondent on membership in Local 6. F. Conclusions Regarding the Failure to Hire the Former Leaseway Drivers Section 8(a)(3) of the Act provides in pertinent part: (a) It shall be an unfair labor practice for an em- ployer- (3) by discrimination in regard to hire or tenure of employment or any term or condition of employ- ment to encourage or discourage membership in any labor organizaiton: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not estab- lished, maintained, or assisted by any action defined in section 8(a) of this Act as_ an unfair labor prac- tice) to require as a condition of employment mem- bership therein on or after the thirtieth day follow- ing the beginning of such employment or the effec- tive date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 9(a), in the ap- propriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 9(e) within one year preceding the effective date of such agreement, the Board shall have certified that at least a majori- ty of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimi- nation against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not avail- able to the employee on the same terms and condi- tions generally applicable to other members, or (B) if he , has reasonable grounds for believing that membershp was denied or terminated for reasons other than the failure of the employee to tender the 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD periodic dues and the initiation fees uniformly re- quired as a condition of acquiring or retaining mem- bership... . Working in conjunction with Section 8(b)(2), Section 8(a)(3) outlaws a closed shop while allowing a union shop with a 30-day grace period.15 Section 8(b)(2) pro- vides that it shall be an unfair labor practice for a labor organization: (2) To cause or attempt to cause an employer to discriminate against an employee in violation of sub- section (a)(3) or to discriminate against an employee with respect to whom membership in such organi- zation has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining member- ship... . Thus, under the statutory scheme it is discriminatory for an employer to discharge an employee for nonmem- bership in a labor organization, but the discrimination is excused if the conditions of the proviso to Section 8(a)(3) are satisfied. Accordingly, a valid union-security clause requirement of union membership cannot be enforced until the 31st day. Granite City Steel Co., 169 NLRB 1009, 1011 - (1968); State Packing Co., 137 NLRB 1420, 1422 (1962). Moreover, the Board has determined with judicial approval that the Act prohibits an employer from requiring an employee to indicate his intent to join the union prior to the expiration of the statutory grace period. Argo Steel Construction Co., 122 NLRB 1077, 1082 (1959), enfd. 289 F.2d 491 (6th Cir. 1961). As the Board stated, "The Act requires no such signification of advance intent, it gives employees 30 days of employ- ment before they can be compelled to make a choice." Id. Applying the above principles to the instant case, it is clear that Respondent enforced the unlawful union-secu- rity clause in such a manner as to require the truckdriv- ers to join Local 6, an unlawfully assisted union, as a condition of employment. The fact that the employees may have also refused to comply with a lawful condi- tion, the $10-an-hour rate, does not excuse Respondent's conduct. Once the General Counsel has established that an unlawful motive was a "motivating factor" in the em- ployer's decision not to hire certain employees, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the unlawful motive. See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See also Madison South Con- valescent Center, 260 NLRB 816 (1982). Although the in- stant case does not turn on Respondent's motive, but rather its unlawful enforcement of union security, Re- ' A closed shop is one where an employee must be a union member as a condition of hire A union shop is one where an employee must become a union member in order to retain employment However, under Sec. 8(a)(3) an employee may satisfy the union membership requirement simply by paying initiation fees and dues, full membership is not required "Membership as a condition of employment is whittled down to its finan- cial core " NLRB Y. General Motors Corp , 373 U S 734 (1963) spondent could escape liability to any applicant by estab- lishing that the employee would not otherwise have been hired. In the instant case, Respondent enforced the unlawful union-security clause so as to preclude consideration of the truckdrivers as employees because they objected to the unlawful imposition of the Local 6 union-security clause. The lawful condition of the $10 wage rate was so entwined with the unlawful union membership condition that it is impossible to ascertain whether the employees would have turned down employment based on the lawful condition. There is no evidence that Respondent failed to hire or consider the drivers for employment for any reason other than their refusal to accept the condi- tions announced by Padovani. Respondent has simply been unable to establish that the employees would not have been hired in the absence of its unlawful conduct. Although truckdriver Frank Thompson filed no written job application, I nevertheless find that Respondent has not established that Thompson would not have been hired or considered for employment in the absence of Respondent's unlawful conduct. Prior to the notice that written applications were required, Thompson had been notified by Padovani that joining Local 6 was a condi- tion of employment at Antioch. Thompson made it clear that he was unwilling to work under such a condition. CONCLUSIONS OF LAW 1. Respondent United States Steel Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Brotherhood of Teamsters and Auto Truck Drivers, Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Warehouse Union Local 6, ILWU, are now, and have been at all times material , labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (2) of the Act by recognizing Warehouse Union Local 6 as the col- lective-bargaining representative of the truckdrivers of its Antioch warehouse and by entering into a labor agreement covering these employees effective August 1984. 4. Respondent violated Section 8(a)(1), (2), and (3) of the Act by unlawfully including a union-security clause in its prehire collective-bargaining agreement with Local 6. 5. Respondent violated Section 8(a)(1) and (3) of the Act by conditioning employment of truckdrivers at its Antioch facility on their joining or paying dues to Local 6. 6. Respondent violated Section 8(a)(1) and (3) of the Act by failing to consider for employment truckdrivers William Locke Sr., Frank Knott, Frank Gloistein, Roy Backlund, and Frank Thompson because these employ- ees failed or refused to join or pay dues to Local 6 under the union-security provision found unlawful in Conclu- sions of Law 3, 4, and 5, above. 7. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. UNITED STATES STEEL CORP. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It having been found that Respondent unlawfully dis- criminated against William Locke Sr., Frank Knott, Frank Gloistein, Roy Backlund, and Frank Thompson with respect to their applications for employment, it will be required to offer them employment in the same posi- tions in which they would have been hired absent the discrimination against them, in the order it would have employed them absent any discriminatory conditions, dis- charging if necessary any employees hired after their dates of application. In the event that there are insuffi- cient positions for all the discriminatees, Respondent will be required to place the names of the unhired truckdriv- ers on a preferential hiring list and offer them the first positions that become available, in which it would have employed them absent any discriminatory conditions. It will be further recommended that Respondent be re- quired to make them whole for any loss of earnings they may have suffered by reason of the failure to give them nondiscriminatory consideration for employment in the manner outlined above, with backpay to be computed on a quarterly basis, making deductions for interim earnings. F. W. Woolworth Co., 90 NLRB 289 (1950), and with in- terest to be computed in the manner prescribed in Flori- da Steel Corp., 231 NLRB 651 (1977), and Olympic Medi- cal Corp., 250 NLRB 146 (1980). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Respondent will further be required to reimburse its truckdrivers for dues paid pursuant to the unlawful union-security clause. Interest on the moneys will be paid in accordance with Florida Steel, supra. Finally, Respondent will be ordered to cease and desist from giving force or effect to its agreement with Local 6, with respect to truckdrivers, unless and until Local 6 has been certified by the National Labor Rela- tions Board as the exclusive bargaining representative of its truckdriver employees. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, United States Steel Corporation, An- tioch, California, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Recognizing Warehouse Union Local 6, ILWU as the exclusive collective-bargaining representative of the truckdriver employees at its Antioch warehouse unless and until Local 6 has been certified by the National Labor Relations Board as the exclusive bargaining repre- sentative of the employees. 16 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 845 (b) Giving force or effect to the agreement with Local 6, or the union-security provisions thereof, that went into effect as of August 1984, or to any renewal , extension, modification, or supplement of or to that agreement, with respect to the truckdrivers. 117 (c) Assisting Local 6 in any other manner to become the representative of the truckdriver employees at its Antioch facility. (d) Encouraging membership in Local 6, or any other labor organization, by conditioning employment under unlawful union-security provisions or by refusing to con- sider job applications for truckdriver positions or refus- ing to hire job applicants, because the employee appli- cants failed or refused to comply with the unlawful union-security provisions. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Offer to William Locke Sr., Fred Knott, Frank Gloistein, Roy Backlund, and Frank Thompson immedi- ate employment, subject to the conditional limitations set forth in the remedy section of the decision. (b) Make Locke Sr., Knott, Gloistein, Backlund, and Thompson whole for any loss of pay they may have suf- fered by reason of the discrimination against them in the manner and to the extent set forth in the remedy section of the decision. (c) Reimburse its truckdriver employees for initiation fees and dues paid to Local 6 pursuant to the unlawful union-security provisions of its agreement with Local 6, with interest. (d) Preserve and, on request, make available to the Board or its agents for examination 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 Antioch, California facility copies of the attached notice marked "Appendix." 1 s Copies of the notice, on forms provided by the Regional Director for Region 20, 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 be taken by the Respondent to ensure 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. 17 Except as otherwise provided in this recommended Order, however, nothing herein shall be construed as requiring Respondent to alter or change the terms and conditions of employment now in effect 18 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 " 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES 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 or- dered 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 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 Warehouse Union Local 6, ILWU as the exclusive collective-bargaining representa- tive of the truckdriver employees at our Antioch ware- house unless and until Local 6 has been certified by the National Labor Relations Board as the exclusive bargain- ing representative of those employees. WE WILL NOT give force or effect to our agreement with Local 6, or the union-security provisions thereof, that went into effect as of August 1984, or to any renew- al, extension, modification, or supplement of or to that agreement, with respect to the truckdrivers. WE WILL NOT assist Local 6 in any other manner to become the representative of the truckdriver employees at our Antioch facility. WE WILL NOT encourage membership in Local 6, or any other labor organization, by conditioning employ- ment under unlawful union-security provisions or by re- fusing to consider job applications for truckdriver posi- tions or refusing to hire job applicants, because the em- ployee applicants failed or refused to comply with the unlawful union-security provisions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer to William Locke Sr., Fred Knott, Frank Gloistein, Roy Backlund, and Frank Thompson immediate employment , subject to the conditional limita- tions set forth in the remedy section of the decision. WE WILL make Locke Sr., Knott, Gloistein, Backlund, and Thompson whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner and to the extent set forth in the remedy sec- tion of the decision. WE WILL reimburse our truckdriver employees, on demand, for dues paid to Local 6 pursuant to the unlaw- ful union-security provisions of our agreement with Local 6, with interest. UNITED STATES STEEL CORPORATION