Campbell Sixty Six Express, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 1972

200 N.L.R.B. 1126 (N.L.R.B. 1972)

1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Campbell Sixty Six Express, Inc and Clara S
Robinson
Teamsters Local Union 612, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America (Campbell
Sixty Six Express, Inc) and Clara S Robinson
Cases 10-CA-9527 and 10-CB-2088
December 22, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On July 17, 1972, Administrative Law Judge'
Fannie M Boyls issued the attached Decision in this
proceeding Thereafter, the General Counsel filed
exceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaints be, and they
hereby are, dismissed in their entirety
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M BOYLS, Trial Examiner These consolidated
cases, initiated by a charge filed on January 20, 1972
(amended on March 13, 1972), and on April 5, 1972, and
complaints issued on March 22 and April 20, 1972, were
tried before me in Birmingham, Alabama, on May 22,
1972 The complaints allege violations by Respondent
Union of Section 8(b)(2) and (1)(A) and by Respondent
Company of Section 8(a)(3) and (1) of the Act arising out
of actions by the Employer, at the Union's insistence, of
placing employee Clara S Robinson at the bottom instead
of at the top of the terminal seniority list and subsequently
laying her off for lack of work In their answers, both
Respondents deny that they engaged in any unfair labor
practices and assert that the Board, under principles
enunciated in Spielberg Manufacturing Co, 112 NLRB
1080, should defer to the decision of the arbitrators
reached pursuant to the provisions of their collective-
bargaining agreement, denying top seniority to Robinson
At the conclusion of the hearing all parties filed helpful
briefs
Upon the basis of the entire record and after carefully
considering the briefs, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT COMPANY
Campbell Sixty Six Express, Inc (herein called Campbell
or the Company), is a Missouri corporation having
terminals in numerous States, including one in Birming-
ham, Alabama, where it is engaged in transporting freight
by motor truck During the calendar year preceding the
issuance of the complaint, which is a representative period,
Campbell received revenues in excess of $100,000 for
transporting goods moving in interstate commerce On the
basis of these admitted facts, I find that Campbell is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II THE RESPONDENT LABOR ORGANIZATION
Teamsters Local Union 612, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America (herein called the Union), is a labor
organization within the meaning of Section 2(5) of the Act
III THE EVIDENTIARY FACTS
Following an election conducted pursuant to an agree-
ment for consent election, the Union was certified in 1965
as the representative of the Company's employees in the
following unit found to be appropriate
All office clerical employees of the Employer's Bir-
mingham, Alabama, terminal, but excluding all other
employees, dispatchers, watchmen, guards, and super-
visors as defined in the Act
At the time of this election, the Company asserted that one
employee, Mrs Clara S Robinson, would possibly do
confidential work in the future and asked that she be
excluded from the bargaining unit The Union agreed to
her exclusion
No further question concerning Robinson's exclusion
from the unit arose until the late spring of 1970 when the
Company's then terminal manager, A R Morgan, for
whom Robinson worked as secretary, informed the
Union's president and business manager, Webb, that he
was leaving the Company and asked Webb to permit
Robinson to join the Union and become a part of the
bargaining unit Webb replied that he had no objection to
her joining the Union but that he had no authority to
include her in the unit In May 1970, Robinson applied for
membership in the Union Pursuant to instructions of the
Union's job steward, Jeanette Wright, a secret ballot vote
was conducted among the office clerical employees on
whether Robinson should be admitted to membership and
a majority voted against admitting her Job Steward
Wright then explained to Robinson that the employees had
voted against accepting her into the bargaining unit
because of her seniority date
Robinson thereupon called the Union's business agent,
200 NLRB No 157
CAMPBELL SIXTY SIX EXPRESS 1127
Howard Tennyson, and asked him if it was correct that her
application for union membership had been rejected
because of her seniority date He stated that this was
correct i
In August 1970, Robinson consulted an attorney about
her problem and he tendered to Union Business Manager
Webb another application for membership in her behalf,
along with a check for her initiation fees and dues This
application and check were returned after Webb explained
to the attorney the circumstances under which Robinson
had been excluded from the bargaining unit in the
representation proceeding
Next, on advice of her attorney, Robinson filed a charge
against the Union with the Board's Regional Office on
August 12, 1971, but this charge was later withdrawn at the
request of a Board agent, who told Robinson that a unit
clarification petition was in order
Thereafter a unit clarification petition was filed by the
Company, requesting that the bargaining unit be clarified
by including Robinson in the unit After a hearing, the
Board's Regional Director for Region 10, acting for the
Board, handed down a Decision and Clarification of
Bargaining Unit on October 28, 1971 (Case 10-UC-42) In
the Decision, it was stated, inter aka
The record indicates that Clara Robinson was excluded
from the unit by the parties, at the request of the
Employer, due to the alleged confidential nature of the
duties which might have been required of her in her
position No investigation of her duties was made by
the Union A "confidential employee" has been defined
by the Board as an employee who assists and acts in a
confidential capacity to persons who formulate, deter-
mine, and effectuate management policies in the field
of labor relations 5
The evidence is uncontradicted that Clara Robinson is
not now performing confidential duties, and that her
duties are clearly office clerical in nature The evidence
is also clear that Clara Robinson's duties have not
changed since the certification of the unit in question
Accordingly, I find that Clara Robinson is not a
confidential employee within the meaning of the Act,
and that she is an office clerical employee
3 Accordingly, the bargaining unit is clarified to
include employee Clara Robinson
5 B F Goodrich Company 115 NLRB 722 724
No appeal was taken from that decision
Following the issuance of the unit clarification decision,
the Company on November 5, 1971, posted a revised
seniority list of the office clerical employees Since
Robinson had been employed at the terminal on May 23,
1957-longer than any of the other office clerical employ-
ees-she was listed as having top seniority
On November 22, 1971, Union Steward Jeanette Wright
filed a grievance protesting the Company's listing of
Robinson at the top of the seniority list The body of this
grievance reads as follows
On 11-5-71 a revised Seniority list for our office was
posted on the bulletin board This list was for the
purpose of adding Clara Robinson, Terminal Secretary
to the rooster [sic] for the first time She was placed in
the No I position with a Seniority date of 5-23-57,
which is the date of her employment with Campbell
"66"
Mrs Robinson became a member of Teamsters Local
612, 11-8-71 for the first time as a result of a National
Labor Relations Board ruling
Our office has been covered by Union contract since
1965 At this time Mrs Robinson was employed as
Secretary to the local Terminal Manager Her Duties
consisting of maintaining Terminal Personnel records,
which are considered confidential, and also Terminal
correspondence Due to the nature of her duties, the
Company stated her job must remain outside the
Union She continued on the Secretarial job as a
Company employee for five years
Mrs Robinson's name did not appear on the Seniori-
ty list posted in 1965, nor any list posted periodically
since that time and no protest was filed by her In fact,
no action was taken to reverse the original status of
Mrs Robinson until May 1970, when she requested
admission into the Local Union
At the time of her request in 1970, the Company
reversed their stand, and supported her request
The local left the decision of her admission to the
descretion [sic] of the Union members of our office,
and a secret vote was taken The vote was against her
admission It was the feeling of the Office personnel,
that Mrs Robinson's action was belated, since we had
been dues paying members of the Union for almost five
years, also it was difficult for us to understand the
change in position by the Company
Mrs Robinson filed a petition with the National
Labor Relations Board, and the ruling was in her
favor-to the effect she be allowed to join the Union
She was promptly allowed this priviledge [sic]
When the revised Seniority list was posted, she was
placed in the No 1 position, which the members of my
office feel in [sic ] unfair to them It is our contention
that Mrs Robinson's Union Seniority should begin
after the N L R B ruling and her entry into the Union
She should not be placed ahead of individuals who
have been dues paying members for the past 6 years,
but should be placed on the bottom of the Seniority list
That grievance was processed through the grievance
machinery of the collective-bargaining agreement then in
effect and on January 19, 1972, was heard by the Southern
Area Multi-State Grievance Committee (herein called the
arbitration panel), a body consisting of three representa-
tives of employers and three representatives of unions,
whose decision by majority vote was, under the agreement,
to be final and binding upon the parties Robinson, as well
as representatives of the Company and of the Union, was
present and participated At the conclusion of the hearing,
the committee reached the following decision
Mrs Robinson's seniority under the bargaining unit
is October 28, 1971 Her seniority for fringe benefits is
1 The employees apparently considered union membership and inclusion on the seniority roster because of her longer tenure of employment with the
in the bargaining unit as synonymous and believed that acceptance of her Company
application for membership would automatically place her ahead of them
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the date of her original employment of May 23, 1957
No monetary claim under this decision
Following this decision, the Company on January 26,
1972, changed Robinson's seniority date to October 28,
1971 Because she was then at the bottom of the seniority
list, she was selected for layoff on January 28, 1972, when
it became economically necessary for the Company to lay
off one employee in the bargaining unit
Analysis and Conclusions
The Company, although defending throughout the
arbitration proceedings its position that Robinson was
entitled to unit seniority from the date of her employment,
now joins with the Union in contending that all parties are
bound by the decision of the Southern Area Multi-State
Grievance Committee and that the Board, pursuant to its
decision in Spielberg Manufacturing Co, 112 NLRB 1080,
should defer to that decision without itself deciding the
issues posed by the complaint In Spielberg, the Board
stated that the desirable objective of encouraging the
voluntary settlement of labor disputes will best be served
by recognizing the arbitrators' award where (1) the
proceedings before the arbitrators appear to have been fair
and regular, (2) all parties have agreed to be bound, and (3)
the decision of the arbitration panel is not clearly
repugnant to the purposes and policies of the Act
In my view, all of these criteria have been met As
disclosed by the transcript of the proceedings before the
arbitration panel, all parties, including Robinson, were
present and participated in those proceedings The panel
members had before them a copy of the Regional
Director's Decision in the unit clarification proceeding and
a copy of the grievance filed by the union steward and
asked pertinent questions about the contents of those
documents In all respects, the proceedings before the
panel appear to have been fair and regular The contract
between the Company and Union provided that the parties
thereto would be bound by a majority decision of the
panel, and the Company and Union are therefore bound
Robinson, too, by participating without objection in the
arbitration proceedings, must be considered as having
agreed to be bound 2
The final requirement of Spielberg-that the arbitrator's
decision be "not clearly repugnant to the purposes and
policies of the Act"-presents a more difficult problem
Although I might not have reached the same conclusion as
that reached by the arbitration panel, I cannot conclude on
the record before the panel or on the entire record in this
case that the panel's conclusion was arbitrary or capricious
or clearly repugnant to the purposes and policies of the
Act At first blush, it might appear that the Regional
Director's finding in the unit clarification proceeding that
Robinson is not now performing confidential duties, that
2 Respondent suggests in its brief that Robinson through her exclusive
bargaining agent must be considered as having agreed to be bound If the
Union had been processing a grievance which she had filed instead of one
filed by other employees against her interests this suggestion would appear
plausible However in this case the Union was clearly not in fact acting in
her behalf I find it sufficient that she appeared without objection and
represented her own interests (though the Company was also presenting
arguments in her behalf) The Spielberg requirement that all parties agree to
be bound by the arbitrator s award appears to be regarded by the Board as a
her duties are clearly office clerical in nature, and also that
her duties have not changed since the certification of the
unit in question must be interpreted as meaning that she
should be treated as having been a part of the office
clerical unit from the date of the Union's certification This
interpretation of the unit clarification decision , considered
in connection with the provisions of the applicable
Supplemental Agreement between the Company and the
Union that "Terminal seniority, as measured by length of
service at such terminal, shall prevail, exceptias otherwise
provided for in this agreement" and "when it becomes
necessary to reduce the work force the last employee hired
shall be laid off first" (Art 42, sec 2(a) and (b)), would
certainly warrant a finding that Robinson's seniority dates
from the time she was hired at the terminal If the
arbitration panel's decision be considered as contrary to or
inconsistent with the Board's decision in the unit clarifica-
tion proceeding, then manifestly the Board should not
defer to the arbitrator's decision and should decide this
case on its merits I do not believe, however, that the
decision of the arbitration panel is necessarily inconsistent
with the Board's decision
It must be remembered that the question of Robinson's
seniority was not before the Regional Director in the unit
clarification proceeding That is a matter provided for in
the collective-bargaining agreement 3 The agreement con-
templated that controversies would apse regarding seniori-
ty and it was expressly provided in the Supplemental
Agreement (Art 42, sec 1) as well as in the Master
Agreement (Art 5, sec 7) that such controversies would be
determined under the grievance and arbitration provisions
of the contracts It is noted that the Regional Director in
his unit clarification decision stated that "the bargaining
unit is clarified to include" Robinson, not that "the
certification is clarified to include" her, which is the
language used in some of the Board's unit clarification
decisions 4 This language may have been advisedly used to
avoid passing on the question whether Robinson should be
regarded as in fact in the office clerical unit since the date
of the Union's certification In any event, it does not
necessarily follow that because the Regional Director
found that Robinson had been erroneously excluded from
the unit at the time of the Union's certification, he must be
deemed to have attempted to correct the error by
retroactively placing her in the unit as of that date it
would be almost impossible to place her in status quo ante
by fully rectifying the consequences of that error As
suggested by a letter purportedly written in 1969 by the
Company's former terminal manager to the Company's
director of industrial relations in Springfield, Missouri, and
read to the arbitration panel, Robinson, because not
considered in the office clerical unit, had not been able to
bid on any of the hourly paid jobs awarded to newer and
part of the requirement that the proceedings be fair and regular Edward
Axel Roffman Associates Inc 147 NLRB 717, 724
3 See Trailmobile v Whirls 331 U S 40, 52 and Aeronautical Industrial
Lodge v Campbell 337 U S 521, 526
4 Cf Mississippi Lime Co, 124 NLRB 884, 888, McDonnell Co, 173
NLRB 225, 227-228 See also The Daily Press Inc 110 NLRB 573, 583, in
which the Board amended its certification to include an employee who
had originally been erroneously excluded
CAMPBELL SIXTY SIX EXPRESS 1129
less deserving employees It also appeared that Robinson's
rate of pay was increased, without, of course, any
bargaining with the Union about it, to a rate commensu-
rate with the highest rate paid in the office Moreover,
throughout the years prior to the unit clarification decision,
she was not covered by the health and welfare or pension
fund provisions of the bargaining agreement Robinson
had not during that period considered herself in the unit
and perhaps for this reason had not contributed to the cost
of collective-bargaining representation Nor had she, prior
to 1970, taken any step to try to become a part of the
bargaining unit All of these factors were before the
arbitration panel when it decided that Robinson's seniority
under the bargaining unit was October 28, 1971, the date of
the Board's unit clarification decision, but that her
seniority for fringe benefit purposes was the date of her
original employment The panel obviously was seeking an
equitable and pragmatic solution to the problems with
which it was presented I cannot say that this solution was
not legally permissible under the collective-bargaining
agreement or that it was clearly repugnant to the purposes
and policies of the Act
Let us turn now to the General Counsel's contention that
the filing of the seniority grievance by the union steward
and the taking of the grievance to arbitration were in
themselves in violation of Section 8(b)(2) of the Act,
because, inter ahq the evidence shows that the Union was
motivated by Robinson's past nonmembership in the
Union in opposing her seniority listing based on the date of
her hire The grievance filed by the union steward
specifically states that the office clerical employees felt that
Robinson's seniority "should begin after the NLRB ruling
and her entry into the Union" and that she "should not be
placed ahead of individuals who have been dues paying
members for the past 6 years " This contention that
Robinson's seniority should commence with the date she
5 A number of contentions or arguments have been made in the
exhaustive briefs of the parties which I find it unnecessary to treat
specifically Those contentions inconsistent with the results herein reached
are rejected
6 In the event no exceptions are filed as provided by Sec 102 46 of the
domed the Union was noted by one of the arbitration panel
members, and Union Business Manager Webb, who was
representing the Union, specifically stated that the date of
her union membership had "no bearing" on the issue of the
seniority to be accorded Robinson (This is consistent with
Webb's statement to the Company's former general
manager even prior to the unit clarification decision that
he had no objection to Robinson's becoming a member of
the Union but that in view of the decision at the time of the
Union's certification, he had no authority to agree that she
be in the unit) Thus, it would appear that the Union's
motive in presenting the grievance was another element of
the issues considered by the panel which apparently
accepted Webb's assurance that the date of Robinson's
acceptEnce into the Union was irrelevant I reject, as
without merit, the General Counsel's contention that the
filing and processing of the grievance was an unfair labor
practice 5
For all of the reasons set forth above, I conclude that it
would best effectuate the policies of the Act to defer to the
decision of the Southern Area Multi-State Grievance
Committee with respect to Robinson's seniority status and
make no independent finding on that issue Since the sole
basis for Robinson 's selection for layoff was her status on
the seniority list of unit employees in accordance with the
determination of the arbitration panel, it follows that the
Union has not violated Section 8(b)(2) or 1(A) of the Act
by establishing that seniority status and causing her layoff
and the Company has not violated Section 8(a)(3) or (1) of
the Act by changing her seniority date to conform to the
arbitrator's decision and thereafter laying her off
There is accordingly issued the following recommended
ORDER6
The complaint should be, and it hereby is, dismissed
Rules and Regulations of the National Labor Relations Board, the findings
conclusions, and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order and all objections thereto shall be
deemed waived for all purposes