Brown Transport Corp.

National Labor Relations Board - Board Decisions

Oct 5, 1989

296 N.L.R.B. 1213 (N.L.R.B. 1989)

BROWN TRANSPORT CORP.
Brown Transport Corp . and Drivers, Chauffeurs,
Warehousemen and Helpers Local No . 71, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO, Petitioner . Case 11-
RC-5478
October 5, 1989
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On August 16, 1988 ,1 the Acting Regional Di-
rector for Region 11 issued a Decision and Direc-
tion of Election in the above-entitled proceeding.
He found that the petitioned-for single terminal
unit of over-the-road drivers , city pickup and deliv-
ery drivers, warehousemen , hostlers, mechanics,
mechanics ' helpers, and garage servicemen em-
ployed at the Employer 's Charlotte , North Caroli-
na terminal is an inappropriate unit, and that the
only appropriate unit is the historical systemwide
(nationwide) unit of employees at all the Employ-
er's 98 terminals . The Regional Director further
found that there was no contract barring an elec-
tion in the expanded unit. Accordingly , as the Peti-
tioner had expressed a willingness to proceed to an
election in any unit found appropriate , the Acting
Regional Director directed an election in the
broader unit and allowed the Petitioner an addi-
tional period of time in which to demonstrate the
requisite showing of interest in the larger unit.
Thereafter , in accordance with Section 102.67 of
the Board 's Rules and Regulations , the Employer
filed a timely request for review of the Acting Re-
gional Director 's decision , and motions to stay the
election and to present oral argument before the
Board . The Employer contended , inter alia, that
because the Petitioner had amended its petition at
the hearing to seek a systemwide unit , the petition
was not timely filed inasmuch as it was barred by
the new contract executed between it and the In-
tervenor.2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
We have carefully considered the entire record
in this proceeding , including all the parties' submis-
sions , and, for the reasons set forth below, we deny
the Employer's request for review of the Acting
Regional Director 's decision , as well as its motions
to stay the election and to present oral argument.
The relevant facts are undisputed . The Employer
is engaged in the interstate transportation of freight
' All dates are in 1988 unless otherwise noted
2 Drivers Mutual Association, Inc
1213
and other commodities , operating out of 98 termi-
nals in 25 States . The Employer has over 2500 em-
ployees nationwide , approximately 360 of whom
are employed at the Charlotte facility . The instant
petition was filed on March 1 , seeking to represent
employees at the Employer 's Charlotte terminal
only.3
Hearings were held on the petition on March 25,
April 8, May 26, and July 27. At the March 25
hearing , apparently in response to the Employer's
stated contention that the smallest appropriate unit
was nationwide in scope , the Petitioner moved to
amend its petition to reflect an additional 54 Team-
sters local unions as Joint Petitioners . At the April
8 hearing , in response to a question from the hear-
ing officer, the Petitioner expressed a willingness to
"take an election" in whatever unit was found ap-
propriate , although it continued to seek the nar-
rower, petitioned-for unit.
The Intervenor has represented the Employer's
employees in a systemwide unit since 1961, and has
entered into successive collective-bargaining agree-
ments with the Employer. On April 29, the Em-
ployer and the Intervenor executed a new 3-year
contract , effective May 1 , covering the existing
unit.
The Employer contends that this contract , valid-
ly executed during the 60-day insulated period,
bars an election where the alternative unit (or
amended petition) seeks a larger and substantially
different unit from that sought in the original peti-
tion , and where the "request " or petition for such
unit has not been made prior to the commencement
of the 60-day insulated period . See Centennial De-
velopment Co., 218 NLRB 1284 (1975).4
The Acting Regional Director found that the in-
stant petition clearly was timely with regard to the
single terminal unit sought ; however , he found the
petitioned-for single location unit inappropriate.5
Moreover , distinguishing Centennial Development,
he found that the new contract did not bar an im-
mediate election in the broader unit , inasmuch as
the Petitioner had neither amended its petition at
the hearing to seek any other unit nor made an af-
firmative alternative unit request . Accordingly, he
s On or about the same date , other Teamsters locals fled petitions
seeking single location units at the Employer 's terminals in St Louis,
Missouri , Pennsauken and Linden , New Jersey , and Cincinnati, Ohio
4 See also Allied Beverage Distributing Co, 143 NLRB 149 (1963);
Grand Sheet Metal Products Co., 110 NLRB 1654 ( 1954); American Suppli-
ers, 98 NLRB 692 (1952)
s No party has requested review of the Acting Regional Director's unit
determination , accordingly, we have not reviewed that issue. Inasmuch as
the Regional Director 's determination that the nationwide unit is the only
appropriate unit is final and is not subject to Board review , the Employ-
er's and Intervenor 's motions to consolidate this case with the petitions
seeking four other single location units at the terminals indicated in fn 3,
supra, are moot and are denied.
296 NLRB No. 157
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
concluded that the instant petition remains timely,
and he directed an election in the systemwide unit,
giving the Petitioner an additional period of time in
which to demonstrate the requisite showing of in-
terest in the expanded unit which he stated must
have been obtained prior to May 1.
It is well established that where a petition is later
amended , even during the hearing itself, the filing
date of the original petition is controlling "if the
employers and the operations or employees in-
volved were contemplated by or identified with
reasonable accuracy in the original petition, or the
amendment does not substantially enlarge the char-
acter or size of the unit or the number of employ-
ees covered . ..." e On the other hand, if the
amended petition seeks a unit that is substantially
larger and different in character , that amended pe-
tition would be treated as a new petition filed on
the date of the amendment and as such must be
supported by an adequate and timely showing of
interest. ?
In Centennial Development , as in the instant case,
although there was an existing systemwide unit
which had been represented by another union, the
joint petitioners sought elections in single project
units . During the course of the hearing on the peti-
tions, the joint petitioners stated , alternatively, that
they wished to represent the employees in the ex-
isting employerwide unit . The Board found that
the joint petitioners' alternative unit request consti-
tuted an amendment of their petition and, inasmuch
as the alternative unit was basically different in
character from the originally requested single
project units , the Board concluded that an election
could be held in the existing unit only if two condi-
tions were met: (1) the insulated period must have
elapsed without execution of a new agreement to
succeed the recently expired one; and (2) a suffi-
cient showing of interest to support an election in
the existing unit must have been obtained before
the date of execution of a new contract between
the employer and the intervenor.8 Although the
first of these conditions was met, the petitioners did
not obtain a sufficient showing of interest until
after the new contract had been executed ; thus, the
Board found that new contract barred an election
in the existing unit and dismissed the petitions.
In the instant case , however, the Acting Region-
al Director found that , unlike the situation in Cen-
tennial Development , the Petitioner did not formally
take an alternative unit position and did not affirm-
6 Deluxe Metal Furniture, 121 NLRB 995, 1000 fn 12 (1958)
7 Centennial Development Co., 218 NLRB at 1285 See also MallincA-
rodt Chemical WorAs, 200 NLRB 1 (1972); Polk Bros Central Appliance
Co., 105 NLRB 251 (1953), Hyster Co., 72 NLRB 937 (1947).
8 218 NLRB at 1285.
atively seek an election in the broader unit. While
the Acting Regional Director's decision simply
provides that the Petitioner stated "in a colloquy
among counsel" that it was "prepared to take". an
election in whatever unit was found appropriate,
the fact that it was the hearing officer who initiat-
ed the inquiry about an election in an expanded
unit is well supported in the record. In response to
the hearing officer's question regarding the Peti-
tioner 's position with respect to proceeding to an
election in a larger unit , the Petitioner 's attorney
responded : "I've already stated we want a short
unit but we will participate in any unit election di-
rected by the Regional Director ." Further, the Pe-
titioner 's statement at the May 26 hearing that it
was prepared to "take an election" in whatever
unit was found appropriate, was in response to an
unsuccessful attempt made by the Employer's
counsel to prove that the Petitioner was really
seeking a nationwide unit . Specifically , the Peti-
tioner 's counsel stated that "from the first day of
the hearing the Employer has said only a nation-
wide unit is appropriate [but] from the first day of
the hearing we've stated that we weren 't seeking
that ." He went on to state, however, that "if a na-
tionwide unit is deemed to be appropriate, we'll
take an election in it."
At all times , the Petitioner argued that the peti-
tioned -for unit was appropriate , and that an elec-
tion should be held in that unit . Thus, because the
Petitioner did not request to amend its petition to
enlarge the unit at the hearing and inasmuch as the
petition was filed on March 1 , appropriately within
the 90-60-day window period , the Acting Regional
Director concluded that it remained timely. We
agree.
Our dissenting colleague argues that this distinc-
tion between a formal amendment or affirmative
request for an alternative unit and a subtly worded
assent to proceed to an election in an alternative
unit merely elevates form over substance and inter-
feres with the right of an employer and an incum-
bent to negotiate and execute a new or amended
agreement during the insulated period . We dis-
agree .9 At the time the petition for the single loca-
tion unit was filed , the Petitioner was met with the
Employer's position that only a broader unit was
9 Also, we disagree with the inferences drawn by our dissenting col-
league from the Petitioner 's amendment of its petition to add various
other Teamsters locals as joint petitioners Again , that amendment was in
response to the Employer 's and Intervenor's unit position , a position the
Petitioner continued to oppose . The only indication in the record con-
cerning the reason for the amendment was that the original petitioner, a
single Teamsters local, wanted to assure that there was a Teamsters local
at each location at which the Employer had a terminal The Petitioner's
amendment, therefore , was a reasonable response to the Employer's unit
contention
BROWN TRANSPORT CORP.
appropriate . The Petitioner continued to seek the
narrower unit , but expressed its willingness to
"take an election" in the broader unit if, but only
if, forced to do so by a finding that the petitioned-
for unit was inappropriate , as it turns out was the
case . Further, at the time the petition was filed,
there was no new contract, and all parties were on
notice as to the issues being litigated.
The 60-day insulated period provided by the
Board's contract-bar policy serves a very valuable
purpose for all parties involved in collective bar-
gaining . It acknowledges their right to be free of
rival union petitions during the last 60 days of a
contract, a time when the task of negotiating an
agreement acceptable to all parties generally is in
its most serious stages . The policies set forth by the
Board in Deluxe Metal and Centennial Development
are designed to prevent a petitioner from being
able to circumvent the insulated period by an
amendment of its petition . In the instant case, how-
ever, there was no amendment . Rather , the hearing
officer simply followed normal Board practice and
procedure in inquiring as to the Petitioner 's will-
ingness to proceed to an election in an alternative
unit should the petitioned-for unit be found inap-
propriate. As a normal practice, when the Board
finds the appropriate unit to be broader than that
petitioned for, and the petitioner has indicated a
willingness to represent that expanded unit, the
original filing date of the petition remains un-
changed , and the petitioner is given an additional
period of time in which to demonstrate a sufficient
showing of interest in the broader unit.>.0
The dissent takes the anomalous position that ir-
respective of how the petitioned -for unit was en-
larged (i.e., by the Petitioner 's formal amendment
or request , or by the Board in its determination) an
election in the broadened unit should occur only if
the conditions of Centennial Development have been
met. Contrary to Chairman Stephens, we would
not accord the same treatment to cases where a pe-
tition is amended by the petitioner and to cases
where the Board on its own initiative broadens a
petitioned -for unit , if the unit has been substantially
enlarged in character , size, or the number of em-
ployees covered . The dissent simply asserts as its
reason for rejecting the Board's longstanding prac-
tice that such a distinction "merely elevates form
over substance, and interferes with the right of an
employer and incumbent union to negotiate and
execute a new or amended agreement during the
insulated period."
10 See , e.g., North Arundel Hospital Assn , 279 NLRB 311 , 312 In. 10
(1986), Eastman West , 273 NLRB 610, 614 fn . 13 (1984) Also, see gener-
ally NLRB Casehandling Manual, Sec. 11030.5.
1215
Thus, while the dissent recognizes that the
Board 's contract-bar doctrine strikes an accommo-
dation among three competing interests-the free-
dom of an employer and a union to enter into a
collective-bargaining relationship, the stability of
bargaining relations once established, and employee
freedom of choice-we believe that it does not
give sufficient weight to the third competing inter-
est in the circumstances here . The dissent 's exten-
sion of Centennial to cases where the Board on its
own initiative broadens the petitioned -for unit fails
to protect employee freedom of choice by not al-
lowing sufficient time for the Board to resolve all
the issues raised by a timely filed petition.' 1
Our Deluxe Metal rule provides a 30-day
window in which to file a rival petition. Absent
agreement of the parties as to the unit , it is not pos-
sible to conduct a hearing , schedule the filing of
briefs, and issue a Regional Director 's decision
during that limited period . As a consequence, the
Regional Director's decision will always issue
during the insulated period . A petitioner, who is
confronted by a contention that only a larger unit
is appropriate and who is willing to "take an elec-
tion" in that unit , would be severely prejudiced
were we to find as a bar a contract executed by the
Employer and the incumbent union during the in-
sulated period and while the litigation is continu-
ing. Neither Centennial Development nor Deluxe
Metal was ever intended to restrict the full litiga-
tion of issues raised by a timely filed petition. 1_ 2
11 The practical effect of extending Centennial in this manner is to
place a petitioning union in the unreasonable position of determining
whether to file an election petition in a smaller unit (its first choice) and
to risk having its petition dismissed based on the Board 's contract-bar
doctrine (if an intervening contract is entered into between the employer
and the incumbent union prior to the resolution of all the issues by the
Regional Director); or whether to file an election petition in the largest
possible appropriate unit (even though perhaps less desirable) or alterna-
tive units, to ensure that its petition is not dismissed (based on the Board's
contract-bar doctrine), in the event that the Board finds the smaller unit
inappropriate and directs an election in a broadened unit
12 A. stated above, it is generally impossible to resolve all the issues
raised by a timely filed petition during the 30 -day window period and
prior to the insulated period during which time an employer and incum-
bent union are now permitted to execute a collective -bargaining agree-
ment . We are faced with the problem of an intervening contract here
only because , under RCA Del Caribe, 262 NLRB 963 (1982), the employ-
er is required to continue bargaining and to execute any contract reached
with the incumbent union, even though a petition has been filed by an
outside union , and all the issues raised by the petition have not been re-
solved Prior to the issuance of RCA Del Caribe, an employer faced with
a pending petition from an outside union was required to cease bargain-
ing with an incumbent union and maintain a posture of strict neutrality
with respect to both the incumbent and the challenging labor organiza-
tion, until such time as one or the other had been certified following a
Board -conducted election . Thus, prior to RCA Del Caribe and at the time
Centennial was decided , an employer and an incumbent union were not
permitted to negotiate and execute a contract prior to the time a labor
organization had been certified following a Board -conducted election. If
this case had arisen prior to RCA Del Caribe , the employer would not
have been able to negotiate or execute a contract before the Acting Re-
gional Director issued his decision , leaving the union with some time in
Continued
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Each in a different context announced the Board's
desire that the parties to a collective -bargaining re-
lationship be free of any challenge to that relation-
ship made during the insulated period.
Here the challenge was made at the appropriate
time , and the Employer and the Intervenor were
on notice throughout the litigation , both of the
Board 's policy of inquiring as to the Petitioner's
willingness to participate in an election in a broad-
er unit and of this Petitioner 's willingness to do so.
In short , the Petitioner made no new challenge to
the parties ' relationship during the insulated period
beyond responding that it would "take an election"
in the unit that the Employer and the Intervenor
argued was the only appropriate unit . Thus, it was
the Employer and the Intervenor who argued that
only the systemwide unit was appropriate ; hence,
they were or should have been on notice at the
time they executed their new agreement that it
may not have constituted a bar , should their argu-
ment prevail . In such circumstances , we find no
warrant for extending the Deluxe Metal-Centennial
policy.
Having found no bar to the instant petition, the
Acting Regional Director appropriately gave the
Petitioner the customary 10 days, until August 26,
to demonstrate that it had the necessary showing of
interest to support an election in the broader unit.
However, the Regional Director further ruled that
any such showing of interest must have been ob-
tained prior to May 1 , the effective date of the new
collective-bargaining agreement between the Em-
ployer and the Intervenor. On September 27, the
Regional Director administratively determined that
the Petitioner had not submitted a sufficient show-
ing with regard to the larger unit and , therefore,
dismissed the petition.
The Petitioner has appealed this administrative
determination . On appeal, the Board finds that the
use of the May 1 date set by the Regional Director
as the cutoff date for the showing of interest is in-
consistent with his finding , affirmed herein, that the
new contract executed between the Employer and
the Intervenor (effective May 1) does not bar the
instant petition.
Accordingly , we deny the Employer 's request
for review, as well as its motions to stay the elec-
tion and to present oral argument .' 3 The Petition-
er's appeal of the Regional Director 's dismissal of
the petition is granted , and the petition is reinstated
and the case remanded to the Regional Director
which to file an amended petition. In Centennial, the contract between
the employer and incumbent union was entered into after the insulated
period and 3 days after issuance of the Regional Director 's decision.
12 We also deny the Intervenor's renewed motion to dismiss for the
reasons set forth in this decision
for further investigation as to the Petitioner's show-
ing of interest in the expanded unit , which showing
may include cards dated on or after May 1.
ORDER
The Employer's request for review of the Acting
Regional Director's Decision and Direction of
Election is denied , the Petitioner's appeal of the
Regional Director 's dismissal is granted , the peti-
tion is reinstated , and the case is remanded to the
Regional Director for further appropriate action,
including investigation into the sufficiency of the
Petitioner's showing of interest in the systemwide
unit found appropriate.
CHAIRMAN STEPHENS , dissenting.
Contrary to my colleagues, I would grant the
Employer's request for review , reverse the Acting
Regional Director's Decision and Direction of
Election , and dismiss the petition.
The Employer, a nationwide carrier of freight
and other commodities, operates 98 terminals in 25
States, and has over 2500 employees . These em-
ployees have been represented by the Intervenor in
a systemwide (nationwide) unit in successive col-
lective-bargaining agreements dating back to 1961.
At the time the instant petition was filed , the then-
existing contract was due to expire on April 30,
1988.1 There was no contention that this contract
was a bar to the instant petition, which was timely
filed on March 1 , during the "open period" of the
contract.
By the petition , the Petitioner sought to repre-
sent a single facility unit limited to the approxi-
mately 360 employees at the Employer 's Charlotte,
North Carolina location , despite the existence of
the historical systemwide unit .2 Hearings on the
petition were held on March 25 , April 8 , May 26,
and July 27 . On March 25, in response to the Em-
ployer's and the Intervenor 's contentions that the
historical , systemwide unit was the smallest appro-
priate unit , the Petitioner moved to amend its peti-
tion to reflect an additional 54 Teamsters local
unions as Joint Petitioners , apparently to assure
that there was a union local having jurisdiction at
each of the locations where the Employer has a
terminal . The hearing officer granted the Petition-
er's motion to amend , over the Employer's and the
Intervenor's objections. At the hearing on April 8,
in response to the hearing officer 's inquiry , the Pe-
I All dates are 1988 unless otherwise noted.
2 The Board has been administratively advised that on or about the
same date as it filed the instant petition , other Teamsters locals filed peti-
tions seeking single location units at the Employer's terminals in St
Louis , Missouri , Pennsauken and Linden . New Jersey, and Cincinnati,
Ohio.
BROWN TRANSPORT CORP. 1217
titioner indicated that it was willing to proceed to
an election in whatever unit was found appropriate.
The Employer and the Intervenor executed a
new contract covering the existing systemwide unit
on April 29, which by its terms is effective for 3
years beginning May 1; it is this contract which the
Employer and the Intervenor contend is a bar to
the instant petition insofar as the petition is the
basis for an election in the systemwide unit.
The Acting Regional Director concluded that
the petitioned-for single terminal unit is inappropri-
ate, and that the smallest appropriate unit is the his-
torical systemwide one. He directed an election in
the expanded unit, and allowed the Petitioner an
additional period of time in which to demonstrate
the requisite showing of interest in the broader
unit .3 The Acting Regional Director distinguished
the circumstances of the instant case from those
present in Centennial Development Co.,4 and con-
cluded that here, because the Petitioner did not
amend its petition to seek a systemwide unit or af-
firmatively request such an alternate unit at the
hearing, but instead merely stated that it was "pre-
pared to take" an election in any unit found appro-
priate , the new collective-bargaining agreement
does not bar the instant petition.
Contrary to the majority, I find that the Acting
Regional Director has relied on a "distinction with-
out a difference" in refusing to follow Centennial
Development. In my view, once the petitioned-for,
single terminal unit was found inappropriate, and
the Petitioner had not timely submitted an adequate
showing of interest to support an election in the
systemwide unit, the newly executed contract bars
an election in the existing unit and the petition
must be dismissed.
It is well established that the Board's contract-
bar policy provides for a 60-day insulated period
immediately preceding and including the expiration
date of an existing contract. All petitions filed more
than 60 days but not over 90 days before the termi-
nal date of any contract will be timely. Deluxe
Metal Furniture Co.5 In the instant case, the peti-
tion was filed on March 1, less than 90 days but
more than 60 days prior to the April 30 expiration
of the then-existing collective-bargaining agreement
a Inasmuch as I would dismiss the petition for the reasons set forth
herein, I find it unnecessary to reach the issues of the sufficiency of the
showing of interest in the expanded unit and the date by which it must
have been obtained I note , however, that the Regional Director 's grant
of additional time for the Petitioner to secure an adequate showing of in-
terest in the broader unit appears to be contrary to Sec 101 17 of the
Board 's Statements of Procedure, which provides, inter alia , that a peti-
tioning union must submit an adequate showing of interest "in no event
later than the last day on which the petition might be timely filed.
218 NLRB 1284 (1975)
s 121 NLRB 995 (1962), as modified by Leonard Wholesale Meats, 136
NLRB 1000 (1962).
between the Employer and the Intervenor. Thus,
the petition was clearly timely with regard to the
single terminal unit sought by the Petitioner. How-
ever, when a petitioner broadens its originally peti-
tioned-for unit to one which is substantially larger
and different in character, the broadened unit re-
quest is treated by the Board as tantamount to a
new petition filed on the date of the amendment.
Centennial Development Co.6
As the Board stated in Centennial, if a petition-
er's requested unit is found to be inappropriate, an
election in the broadened unit found to be appro-
priate by the Board may be held only if two condi-
tions are met: (1) the insulated period must have
elapsed without execution of a new collective-bar-
gaining agreement; and (2) a sufficient showing of
interest to support an election in the broader unit
must have been obtained before the date of the exe-
cution of that new collective-bargaining agree-
ment.7
My colleagues , in agreement with the Acting
Regional Director, find that because the Petitioner
did not formally amend its petition to seek an alter-
native unit, or make an affirmative alternative unit
request at the hearing, the March 1 filing date re-
mains controlling and the newly executed collec-
tive-bargaining agreement between the Employer
and the Intervenor, covering the historical, system-
wide unit, does not bar the conduct of an election
in the broader unit found appropriate by the
Acting Regional Director.
I find no valid reason for making such a distinc-
tion between a formal amendment or affirmative
request for an alternative unit and a subtly worded
assent to proceed to an election in an alternative
unit, if found appropriate by the Regional Director;
in either event, the result is the same. Such a dis-
tinction merely elevates form over substance, and
interferes with the right of an employer and an in-
cumbent union to negotiate and execute a new or
amended agreement during the insulated period.8
As the Board has noted, its contract-bar doctrine is
"but another instance of the Board's striking an ac-
commodation among three competing interests: the
freedom of an employer and a union to enter into a
collective-bargaining relationship, the stability of
bargaining relations once established, and employee
freedom of choice. . . ." Corporacion de Servicios
Legales.9 Thus, the contract-bar doctrine and the
6 218 NLRB at 1285, citing Deluxe Metal Furniture , 121 NLRB at 1000
fn 12 See also Mall,nckrodt Chemical Works, 200 NLRB 1 (1972); Polk
Bros Central Appliance Co., 105 NLRB 251 (1953), Hyster Co., 72 NLRB
937 (1947)
' Id.
a See RCA Del Caribe. Inc., 262 NLRB 963 (1982)
9 289 NLRB 612 (1988)
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
insulated period , in particular , were established to
further the Act's ultimate goal of fostering industri-
al peace . Deluxe Metal Furniture, supra.
In the instant case , the distinction made by the
Acting Regional Director and adopted by my col-
leagues enables the Petitioner to avoid the effects
of the insulated period merely because , technically,
it was the Board that expanded the unit , rather
than the Petitioner directly. This distinction is par-
ticularly suspect in this case , because, shortly after
filing its petitions for several single -facility units,
the Petitioner amended its petition in the instant
case to reflect 54 additional Teamsters locals as
Joint Petitioners , leading one to believe that, even
at the outset , the Petitioner was aware that the sys-
temwide unit might be the only appropriate unit. 10
Nonetheless , my colleagues allow the Petitioner to
proceed to an immediate election in the broader
unit because the original petition was filed in a
timely manner , even though at the time the petition
was, in effect, amended to support the broader
unit, a new or explicitly amended petition would
have been untimely . Deluxe Metal, supra ; Centenni-
al Development, supra . Thus, a petition for a single-
facility unit is in effect deemed a "foot in the
door," rendering any subsequent contract reached
by the Employer and the incumbent union vulnera-
ble for contract-bar purposes . In my opinion, if, as
here, the overall unit is found to constitute the
smallest appropriate unit , the Petitioner should be
required to have organized that unit and petitioned
for it in a timely fashion, i.e., during the 90- to 60-
day open period. Otherwise, it should be required
to wait for the next open period.
I believe the reasoning of the majority is con-
trary to the purposes and goals expressed in Cen-
tennial, supra . Where a petitioned-for unit has been
substantially enlarged in character, size, or the
number of employees covered , it should make no
difference whether this was done by a petitioner's
formal amendment or request , or by the Board in
its determination . Thus, regardless of the circum-
stances or of the date on which they occurred, an
election in the broader unit should occur only if
the conditions of Centennial Development, supra,
have been met.
In the instant case, it is clear that the first of the
Centennial Development conditions has not been
met. Thus , on April 29, the Employer and the In-
tervenor executed a new collective-bargaining
10 As the majority notes , the Petitioner sought amendment so as to
"assure" the presence of a Teamsters local if the historical nationwide
unit was found to be the only appropriate unit Thus, it is clear that, at
the initial hearing date , the Petitioner recognized the need to ensure a
Teamsters representative 's presence on a nationwide unit basis In my
view this is tantamount to acquiescing to an alternative unit from the
outset of the hearing.
agreement to succeed the agreement. due to expire
the following day. The amendment to the Petition-
er's petition, whether by the Board or the Petition-
er itself, occurred well after the effective date of
the new agreement , making the petition for the
broader unit untimely and any election in the exist-
ing unit barred by the new contract. Centennial De-
velopment Co., supra. 1I
In responding to my dissent, my colleagues make
several assertions on which I make the following
comments : First, because the issue here is the appli-
cability of the contract-bar rule of Deluxe Metal
Furniture Co., 121 NLRB 995, 1000 fn. 12 (1958),
as reaffirmed in Centennial Development, the major-
ity's reliance on the Board's "long standing prac-
tice" of permitting additional time to establish a
showing of interest in cases that do not raise con-
tract-bar issues is entirely misplaced . (See cases
cited at fn. 10 of the majority opinion and accom-
panying text.) Furthermore, I do not understand
how the majority can convincingly suggest that the
Centennial Development rule made practical sense
only under the regime of Midwest Piping & Supply
Co., 63 NLRB 1060 (1945), which the Board over-
ruled in RCA Del Caribe, 262 NLRB 963 (1982).
My colleagues argue that "prior to RCA Del
Caribe and at the time Centennial was decided, an
employer and an incumbent union were not permit-
ted to negotiate and execute a contract prior to the
time a labor organization had been certified follow-
ing a Board-conducted election . If this case had
arisen prior to RCA Del Caribe, the employer
would not have been able to negotiate or execute a
contract before the Acting Regional Director
issued his decision , leaving the union with some
time in which to file an amended petition" [slip op.
at 9-10 fn. 12]. I doubt the accuracy of this conten-
tion, for the Board in Shea Chemical Corp., 121
NLRB 1027, 1029 (1958), expressly stated that the
Midwest Piping doctrine did "not apply in situations
where, because of contract bar or certification year
or inappropriate unit or any other established
reason , the rival claim and petition does not raise a
real representation question ." Clearly, under either
scheme, Midwest Piping or RCA Del Caribe, an in-
cumbent union and employer could enter into a
contract in the face of a rival petition that seeks an
inappropriate unit, as was the case here . It may well
be, as my colleagues assert (slip op. at 10 fn. 11),
that the treatment of amended petitions under con-
tract-bar rules does create some risk of dismissal
for the petitioner who initially seeks what is ulti-
11 See also Allied Beverage Distributing Ca, 143 NLRB 149 (1963);
Grand Sheet Metal Products Ca, 110 NLRB 1654 (1954); American Suppli-
ers, 98 NLRB 692 (1952)
BROWN TRANSPORT CORP.
mately determined to be an inappropriate unit. But
that has been the case since 1958 , not just since
1982. If the time has come to reexamine this par-
ticular aspect of the contract -bar rules , I would
suggest that we do so in a more forthright manner,
rather than follow my colleagues ' approach of
leaving Centennial Development intact while erect-
ing an artificial distinction between a party 's formal
1219
amendment to its representation petition and a
Board-initiated amendment.
Accordingly , for the reasons set forth above, I
find that the new collective-bargaining agreement
between the Employer and the Intervenor bars an
election in the existing systemwide unit, and I
would dismiss the petition as untimely filed.