American Buslines, Inc.

National Labor Relations Board - Board Decisions

May 25, 1967

164 N.L.R.B. 1055 (N.L.R.B. 1967)

AMERICAN BUSLINES, INC. 1055
American Buslines , Inc. and Automotive
Chauffeurs, Parts & Garage Employees,
Local Union No . 926 Aff./with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America. Case
6-CA-3279.
May 25,1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On March 15, 1966, Trial Examiner Abraham H.
Maller issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief and the Respondent
filed an answering brief. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith. 2
The Trial Examiner's recommended dismissal of
the 8(a)(5) and (1) allegations herein is grounded
upon his finding that the Charging Union waived its
right to continue its representation of the subject'
employees and also acquiesced in their promotions
or reclassification as utility-baggagemen by the
Respondent. In this connection, we have given due
consideration to the statements made by the Union's
business agent during the processing of a grievance
wherein he said: "Why don't you just take them all
[bus terminal porters] and make utility-baggagemen
out of them?" When queried by Respondent's
officials, the Union's agent replied: "You won't have
any trouble from us." The Trial Examiner relied on
this casual proposal as the basis for his waiver
theory in disposing of the issues herein. We disagree
with this aspect of the Examiner's rationale.
In our view, other contemporaneous and relevant
events occurring between the parties served to
nullify any waiver or disclaimer which the
Respondent may have felt was inherent in these
statements by the Union's representative. For
example, a few weeks later when the Union
requested bargaining negotiations for the purpose of
renewing the existing labor agreement, Respondent
replied affirmatively and did not mention the matter
of promoting its porters. Approximately 2 months
after the described colloquy, Respondent, in a letter
dated February 8, 1965, first advised the Union that,
"effective February 16, 1965, we are promoting all of
our porters to the position of utility-baggagemen."3
The Union responded in a letter which, inter alia,
expressed the Union's disagreement with this
projected action, which it described as contrary to
the Union's certification and the existing labor
agreement4 between the parties wherein the Union's
right to represent Respondent's porters was legally
recognized. These circumstances compel us to
conclude that the Union cannot be found, solely by
virtue of the isolated and casual suggestions by the
business agent, to have effected a clear and
unmistakable waiver of its statutory rights,5 to have
waived its right to continue bargaining for
Respondent's porters or to have consented to the
dissolution of its bargaining unit.
Nevertheless, we find that the record compels
dismissal of the complaint. When the Union was first
apprised of Respondent's plan to promote all of the
porters to utility-baggagemen with the concommitant
disappearance of the Union's bargaining unit, it
became incumbent upon the Union to enforce its
bargaining rights diligently by attempting to
persuade the Respondent to alter its decision if it
found the decision unacceptable. In this context, we
note that the Respondent in its notifying letter
invited the Union to communicate with Respondent
"if there is any phase of this situation which you
desire to discuss." However, the Union's immediate
reaction was merely to protest the proposal in a
letter by characterizing it as an invasion of its
statutory rights. Its next and final course of action
was to file an unfair labor practice charge. In
N.L.R.B. v. Columbian Enameling & Stamping Co.,
306 U.S. 292, 297, the Supreme Court, in discussing
the duty of labor organizations to initiate collective
bargaining, held "that the statute does not compel
him [the Employer] to seek out his employees or
request their participation in negotiations for
purposes of collective bargaining .... To put the
employer in default here the employees must at least
I As the record, including the briefs of the parties, adequately
presents the issues and positions of the parties, Respondent's
request for oral argument before the Board is hereby denied
2 Member Brown concurs in dismissing the complaint
3 There was no reference in this letter to the earlier statements
made by the business agent
" The Union's agreement with Respondent contains no
provisions clearly infringing upon the Respondent 's right to
transfer employees out of the unit In fact, as noted by the Trial
Examiner (fn 6), the agreement provided that consideration be
given the porters for any utility-baggageman vacancies before a
new employee was hired therefor
' The Timken Roller Bearing Co v N L R B , 325 F 2d 746
(C.A 6), cert denied 376 U S 971
164 NLRB No. 136
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have signified to respondent their desire to
negotiate." Although this statement was made in a
different context, we think it applicable to the facts
in this case. Here, Respondent gave the Union 1
week's advance notice of its plan to promote the
porters and invited discussion of "any phase of this
situation." Nevertheless, the Union failed to
prosecute its right to engage in such discussion but
contented itself by protesting the contemplated
promotions in its letter dated February 10 and by
subsequently filing a refusal-to-bargain charge.
Accordingly, because of the Union's lack of
diligence in enforcing its representational rights and
the absence of any persuasive evidence that
Respondent's conduct was discriminatorily
motivated; and, because the contract clearly
contemplates transfer and promotion of porters to
the utility-baggageman classification without
consulation with the Union, we find that the
Respondent has not engaged in conduct violative of
Section 8(a)(5), and, therefore, we shall dismiss the
complaint.
answer, Respondent denied the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held before me at
Pittsburgh, Pennsylvania, on August 3, 1965. The General
Counsel, the Respondent, and the Charging Party were
represented and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral
argument, and to file briefs with me. Briefs were filed by
the General Counsel and the Respondent.
Upon consideration of the entire record,' including the
briefs of the parties, and upon my observation of each of
the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation with its principal
office at Omaha, Nebraska, is engaged in interstate
transportation.2 During the year preceding the filing of the
complaint, Respondent derived gross revenue in excess of
$50,000 from such operations. Accordingly, I find and
conclude that Respondent is engaged in commerce within
the meaning of the Act and that it will effectuate the
policies of the Act for the Board to assert jurisdiction here.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
ABRAHAM H. MALLER, Trial Examiner: On February 26,
1965. Automotive Chauffeurs, Parts & Garage Employees,
Local Union No. 926 aff./with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union, filed a charge against
American Buslines, Inc., herein called the Respondent.
On July 2, 1965, the Union filed an amended charge. Upon
such charges, the Regional Director for Region 6 of the
National Labor Relations Board, herein called the Board,
on July 6, 1965, issued on behalf of the General Counsel a
complaint against the Respondent, alleging violations of
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called
the Act.
In substance, the complaint alleged that the Respondent
had failed and refused to bargain collectively with the
Union as the duly certified exclusive collective-bargaining
representative of the porters and janitors at Respondent's
Pittsburgh terminal by (1) withdrawing recognition from
the Union and (2) unilaterally changing the wages and
seniority of the employees in the unit. In its duly filed
i The General Counsel and the Respondent have filed a joint
motion to correct the transcript of the record in certain
particulars therein specified Upon consideration of the motion, it
is hereby ordered that said motion be and it is granted
2 Respondent is a member of the Trailways System and is
sometimes referred to in the record as "Trailways "
II. THE LABOR ORGANIZATION INVOLVED
Automotive Chauffeurs, Parts & Garage Employees,
Local Union No. 926 aff./with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is and has been at all times material herein a
labor organization within the meaning of Section 2(5).
III. THE ISSUE
Whether Respondent , by promoting all of its porters to
utility-baggagemen and thereby increasing their wage
rates, acted unilaterally and violated Section 8 (a)(5) and (1)
of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
1. Background
On February 21, 1963, the Union was certified as the
exclusive bargaining agent for a unit of porters and
janitors, excluding, inter alia , utility-baggagemen,3 at
Respondent's Pittsburgh terminal . Since that time, the
parties have had two collective-bargaining agreements, the
most recent of which ran from April 1, 1964, to March 31,
1965. During this history of bargaining, utility-baggagemen
have been represented by Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of
America, referred to as Amalgamated. Porters are
specifically excluded from the unit of utility-baggagemen.
Utility-baggagemen receive a higher rate of pay (plus a
cost-of-living allowance) than porters.
The principal job functions of the porters have been
loading and unloading buses4 and cleaning the terminal.
3 The parties have at times variously referred to this class of
employees as "utilitymen-baggagemen" and "baggage-
utilitymen " The terms are synonymous
" The term "loading and unloading buses" has reference only to
baggage and express and freight parcels
AMERICAN BUSLINES, INC. 1057
The main functions of the utility-baggagemen are
preparing baggage and freight manifests, preparing
express bills, and tracing and forwarding lost baggage. In
emergencies, the utility-baggagemen have also cleaned the
terminal. There has been a continuing controversy
between the Respondent and the Union concerning the
use of the utility-baggagemen for loading and unloading
buses. Utility-baggagemen have at times performed this
function, giving rise to grievances filed by the porters
under the terms of the collective-bargaining agreement.
2. Respondent promotes all porters to utility-baggagemen
At one of the grievance meetings held in December
1964, Business Agent Macalaso suggested a solution to the
continuing problem of the utility-baggagemen handling the
loading and unloading of buses. He said: "Why don't you
just take them all and make them baggage-utilitymen?"
Realizing that such action would take the men out of the
porters' unit and put them into a unit represented by
Amalgamated, Respondent's Regional Manager Wilbur Y.
Mann asked: "Are you asking me to take your members?"
Macalaso replied: "You will have no trouble from us."5
Respondent, however, took no immediate action to
implement Macalaso's suggestion. On January 11, 1965,
the Union wrote a letter to the Respondent, pointing out
that its collective-bargaining agreement expired on
March 31, 1965, indicated its desire to negotiate a new
contract, and suggested that Respondent call to arrange a
meeting. On January 25, Respondent wrote to the Union,
indicating its readiness to meet for the purpose of
negotiating a new contract.
However, by February 8, Respondent had decided to
adopt Business Agent Macalaso's suggestion to promote
all the porters to utility-baggagemen, thereby giving them
an hourly wage increase from 12 to 27 cents per hour, plus
a cost-of-living allowance amounting to an additional $8 to
$9 every 2 weeks. Reasons for Respondent's action were
as follows: It provided a better service to the public in that
there were no arguments between the porters and the
utility-baggagemen as to who was going to unload an
incoming bus. Also, the Respondent had been under
considerable pressure from various organizations to
upgrade the porters who were Negroes.6
On February 8, Respondent wrote the Union as follows:
This is to advise you that effective February 16,
1965, we are promoting all of our Porters to the
position of Utility-Baggageman. This move means an
hourly wage increase of from twelve to twenty-seven
cents per hour for the men, plus a cost of living
allowance.
It is not our intention to replace the Porters when
they are promoted. Consequently, we will have no
employees in the bargaining unit for which your
organization is certified.
In the event that there is any phase of this situation
which you desire to discuss, please communicate with
the writer.
On February 10, Union Secretary-Treasurer DeGregory
wrote to the Respondent as follows:
We do not agree with the contents of your letter
dated February 8, 1965. This Local Union was
certified as a collective-bargaining agent of all
employees of Continental Trailways doing porter
work. In addition, it is our contractual understanding
that porter work shall only be done by employees
covered by our Labor Agreement.
We are happy that you are promoting all of your
present porters to the position of Utility Baggagemen,
thus giving them an hourly wage increase from twelve
(12) cents to twenty-seven (27) cents. However, it is
our understanding that porter work will still have to
be done at your terminal and offices. This work is
under our exclusive jurisdiction in accordance with
our Labor Agreement.
If it is your intent to use Utility Baggagemen to do
this porter work, I wish to advise that we believe that
this is contrary to our contract and contrary to the
certification of the National Labor Relations Board.
3. Results of Respondent's actions
The men who were formerly porters are now utility-
baggagemen and are represented by Amalgamated. The
agreement between Amalgamated and the Respondent
contains a provision for checkoff of dues. On March 1,
1965, the Union sent Respondent a checkoff list which
Respondent rejected with the notation: "These employees
are no longer porters as of Febr. 15, 1965." Despite the
fact that Respondent no longer checks off dues for the
Union, four of the seven men who were formerly porters
have continued voluntarily to pay dues to the Union.
The incorporation of these men into the utility-
baggagemen unit has affected their seniority, putting them
below the old utility-baggagemen. Seniority can affect
layoffs. In addition, the men bid for shifts and choice of
vacation periods on the basis of seniority.
Insofar as the men's duties are concerned, Respondent
has combined the functions of the porters' unit with those
of the utility-baggagemen. However, not all men perform
all of the functions, their duties depending upon the shift
that they work. All men load and unload buses, check and
deliver baggage, deliver express, service Five Star,7 and
(except for men employed on shift B-1) maintain the
cleanliness of the terminal. Additional duties depend upon
the particular shift on which the men are employed. Thus,
men on shift B-1 are responsible for express sales and
registration, notification of consignees, tracing and
answering tracers, and lost and found. Men on shift B-2
are responsible for express sales and registration,
5 The foregoing is based on the credited testimony of Mann,
corroborated by Director of Sales Jack B Williams and Alphonse
Cancilla, manager of the Pittsburgh terminal Business Agent
Macalaso did not testify It was represented to me that he was in
the hospital at the time of the hearing and therefore not available
Henry J. Adams, assistant business agent of the Union, denied
that the foregoing conversation took place Respondent's
representatives all testified in a straightforward manner and I
have no reason to doubt their testimony Accordingly, it is
credited.
6 That the porters would thereby be upgraded is of course
evident from the difference in the wage scales between the
porters and the utility -baggagemen In this connection , it should
be noted that the collective - bargaining agreement between the
Union and the Respondent contained the following provision.
In the event a vacancy in the position of utility-baggageman
occurs at the Pittsburgh Terminal of the Company, the
Company will give consideration in the filling thereof to
employees covered by this Agreement before hiring a new
employee for such vacancy
Five Star is the designation of a type of bus service offered by
Respondent . Servicing Five Star means replenishing the coffee
and hot water jugs and providing the bus with new supplies when
it stops at Pittsburgh.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inventorying of baggage , tracing and answering tracers.
Shift B-3 handles express sales and registration , locker
readings , reporting check numbers of baggage that has
been on hand for at least 5 days, and notification of
shippers of express unclaimed after 4 days. Shifts B-4
through B-9 have specific cleaning assignments.
However , whenever any of these shifts relieves any of the
first three shifts (each shift works 5 days a week ), the men
have the same duties as the shift which they relieve. The
senior man on duty at any particular time is responsible for
preparing manifests.
Prior to their promotion to utility -baggagemen, the
porters wore red caps, while the utility-baggagemen did
not. Since their promotion, the former porters have
continued to wear red caps. However , the red caps were
not furnished by the Respondent , and the porters have not
been nor are they now required to wear them. Presumably
they do so because it is common knowledge that the red
cap advertises their availability to carry baggage for a
passenger and thus earn tips.
B. Concluding Findings
There is no evidence of any animus on the part of the
Respondent against the Union. Respondent has had a
collective -bargaining agreement with the Union since its
certification in 1963, and the relationship appears to have
been a normal one. It cannot therefore be argued that the
Respondent promoted the porters to utility -baggagemen
and destroyed the unit in order to avoid doing business
with the Union. To the contrary, it is clear that the
promotion was suggested by the Union, itself.
Although the instant case is one of first impression, the
application of established Board principles leads to the
conclusion that the Respondent did not violate the Act and
the complaint should be dismissed . It is well settled that a
union may disclaim any further interest in representing
certain employees ," may waive statutory rights by
collective bargaining ,9 and cannot charge an employer
with refusal to bargain where the union has failed to seek
bargaining . 10 It is true that the Board has held that a
disclaimer of interest must be clearly shown ," and that a
waiver of statutory rights must be by "a clear and
unmistakable showing."12 However, it is difficult to
conceive how the Union could have made clearer its
disinterest in representing the porters in the future than
was made by Macalaso' s suggestion, particularly when
Mann asked : "Are you asking me to take your members?"
and Macalaso replied: "You will have no trouble from us."
In an even less compelling situation , the Board has held
that a union had acquiesced in a proposed change of
operations by an employer, which would eliminate the
employees represented by the union . In Howard Hall
Company, Inc., 123 NLRB 1458 , the union sought to
bargain with the employer who informed the business
agent that it was losing its principal hauling account out of
Savannah and proposed to have a cartage company take
over its city pickup and delivery service-whereupon, it
would not be necessary to maintain a terminal in
Savannah . However, the employer desired to delay
abandonment of the terminal for a short period of time.
The business agent acquiesced generally with the
employer's proposal and suggested that a cartage
arrangement be made with a certain cartage company with
whom the union already had a collective -bargaining
agreement . The employer approved the suggestion
because it had had satisfactory relations with that
particular company prior to the establishment of its
terminal . In the meantime , the employer agreed to pay the
union ' s suggested wage rate for the employees still
employed at the terminal . After closing its terminal, the
employer operated through the cartage company
suggested by the union, but later found it more economical
to operate through a different cartage company which was
not under contract with the union. The union thereupon
filed a charge alleging that the employer had refused to
bargain collectively in the first instance . The Board
dismissed the complaint , approving the finding of the Trial
Examiner that "the Union was fully advised of
Respondent ' s intention to close out its terminal in
Savannah and acquiesced in it to the extent of suggesting
and recommending the particular cartage company to be
employed by Respondent" (Id. at 1462).
In the instant case, the suggestion to change the
operations came not from the Respondent , but from the
Union, itself, and was accompanied by the assurance that
if the Respondent acted upon the Union's suggestion, it
would have no trouble from the Union . Not only did the
Union suggest the change of operations but, despite the
fact that it now contends that the Respondent unilaterally
changed the wage rates of the porters, it wrote the
Respondent on February 10 that it was "happy" that
Respondent was promoting its porters and giving them an
increased wage rate. Its position at that time was not that
the Respondent 's action had violated the Act, but that
Respondent would be in violation if the utility-baggagemen
performed porter work and if the Respondent did not hire
additional porters.
It is also settled that members of one bargaining unit
may be merged with members of another bargaining unit
with the resultant disappearance of the former unit. Thus
in Humble Oil & Refining Company, 153 NLRB 1361,
Humble purchased the assets of Weber & Quinn, whose
truckdrivers and mechanics were represented by Local
553 under a collective -bargaining agreement. Pursuant to
its policy of integrating into its existing structure newly
acquired smaller businesses, Humble closed Weber &
Quinn 's office, repainted all its trucks, and employed
some of its mechanics and truckdrivers , who were then
relocated at Humble's Brooklyn and Queens offices where
they work with Humble's other drivers and mechanics.
Humble then filed a petition for clarification, seeking to
include the employees previously employed by Weber &
Quinn in the existing contractual unit which is represented
by another union . Local 553 moved to dismiss the petition
on the ground , inter alia, that Humble as successor to
Weber & Quinn is bound by the terms of the latter's
contract with Local 553. The Board denied the motion and
held that the former Weber & Quinn employees had been
effectively merged into the unit currently represented by
the other union.
8 Duralite Co , Inc , 32 NLRB 425, 428-429, Miratti 's, Inc , 132
NLRB 699, 700-701, The Mengel Company, 80 NLRB 705
° International News Service Division of The Hearst
Corporation , 113 NLRB 1067, 1070 , Beacon Piece Dyeing and
Finishing Co., Inc, 121 NLRB 953, 956 Ador Corporation, 150
NLRB 1658 , Druwhit Metal Products Company , 153 NLRB 346.
10 See, e g , N L R B. v Columbian Enameling & Stamping Co ,
306 U S 292 , 300, Longview Furniture Company, 100 NLRB 301,
303, General Electric Company , 127 NLRB 346, 348
" The Mengel Company, supra
12 Beacon Piece Dyeing and Finishing, supra
AMERICAN BUSLINES, INC. 1059
A similar situation was presented in Sargent &
Company, 78 NLRB 918. In that case, the employer had
purchased the equipment , inventory, and right to
manufacture the products of William Schollhorn
Company. Prior to the purchase, the employees of
Schollhorn were represented by Playthings, Jewelry &
Novelty Workers International Union which filed a
petition seeking continued representation of these
employees . Sargent 's production and maintenance
employees were then represented by another union. The
Board dismissed the petition , holding that a separate unit
of employees in the Schollhorn manufacturing division
was not appropriate. The Board pointed out that although
the integration of Schollhorn into Sargent' s operations was
not yet complete, it was in the process of taking place and
there were no significant differences between the
Schollhorn division and the remainder of Sargent's
manufacturing divisions.
Nor is the foregoing principle limited to acquisition of
new businesses . Westinghouse Electnc Corporation, 79
NLRB 744, presented the following situation: The
Cleveland Association had for years represented a unit
which included all clerical salaried employees. United
Electrical , Radio and Machine Workers of America
represented a unit of all production and maintenance
employees, excluding salaried clerical employees.
Westinghouse ' s operations were divided into factory
operations and foundry operations . Within the
Westinghouse factory was a factory quality control section
whose employees were salaried and who were represented
by the Cleveland Association. Its foundry inspection work,
less complicated in nature , was performed by employees
called casting-checkers . These employees were in the
production and maintenance unit represented by United
Electrical . As a result of losses incurred in the foundry and
in the interest of greater efficiency and economy,
Westinghouse set up a new section in the foundry called
foundry quality control section . To this new section,
Westinghouse transferred some employees from the old
casting checking section and from manufacturing jobs.
The remainder were new employees hired specifically for
the new section. All of the employees of the new section
were salaried . Job descriptions in the new section were
similar to those in the factory quality control section. The
Board held that "[f] or" purposes of unit determination,
the inspectors in the new foundry control section are in the
same position as newly hired employees in an expanding
unit . Just as the latter would automatically be included in
the existing unit without a new election , so the inspectors
in the new foundry control section are automatically
included in the clerical unit already represented by the
Petitioner [Cleveland Association] (Id. at 745-746).
In none of the foregoing cases is there any suggestion by
the Board that the employers were under a duty to replace
the promoted or transferred employees in order to restore
the status of the bargaining units from which the
promotions or transfers had been made.
The General Counsel' s primary position is based on the
premise that the Union did not suggest and acquiesce in
Respondent ' s action . However , the evidence is
overwhelmingly to the contrary . In the alternative, the
General Counsel argues that the Union withdrew its
suggestion when it offered to bargain for a new contract on
January 11 . I do not construe the Union 's letter of
January 11 , as indicating to the Respondent that the Union
had changed its mind about its earlier suggestion. When
Macalaso made his suggestion , he could not have
anticipated an immediate acceptance or rejection by the
Respondent . The promotion of the porters to utility-
baggagemen meant a substantial increase in Respondent's
payroll . This was a step which would obviously require
mature consideration . When, therefore, the existing
collective - bargaining contract was due to expire, the
Union , having failed to divest itself of its obligation to
represent the men who were in the porter unit , invited the
Respondent to bargain for a future contract . Nothing in the
Union ' s action in this regard implies a withdrawal of
Macalaso's earlier suggestion that the Respondent and the
Union could avoid future grievances by promoting all the
porters to utility -baggagemen . Moreover , the General
Counsel 's argument is undermined by the Union's letter of
February 10, in which , as previously noted , it stated that it
was "happy" that Respondent had promoted the porters
and had given them an increased wage rate.
The General Counsel also argues that the porters were
not, in fact , promoted to utility -baggagemen , but are still
doing porter work and are still wearing red caps which the
old utility - baggagemen do not wear . The argument would
have merit only if the Respondent had acted unilaterally,
as demonstrating that the merger of the units was a sham
to cover a unilateral wage increase . It has no merit here,
where the employer acted upon the suggestion, and with
the acquiescence , of the Union . Moreover , the facts do not
support the argument . As I have previously found, the
wearing of the red caps is entirely voluntary and is not
required by the Respondent . Insofar as the work is
concerned , the specific duties depend upon the shifts for
which the men bid , and if a man prefers a shift requiring
less clerical work , that is his prerogative . For example,
Eddie Sanders , a former porter , was once on a shift that
required considerable manifesting , but bid for a different
shift which did not involve manifesting as a primary
responsibility . Also, Allen Forte , another former porter,
has never bid for shift B-1. However , when Forte 's shift
relieves shift B-3, he, as the senior man, has the duty of
preparing manifests . In any event , it is no prerequisite of
an appropriate unit that all its members perform the
identical work.
In view of all the foregoing , I find and conclude that
Respondent did not act unilaterally when it promoted the
porters and increased their pay.
RECOMMENDED ORDER
For the reasons above expressed and on the entire
record , it is hereby recommended that the complaint be
dismissed in its entirety.
298-668 0-69-68