Capp Express, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1975

220 N.L.R.B. 816 (N.L.R.B. 1975)

816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Capp Express, Inc. and Fraternal Association of Spe-
cial Haulers, Local Union 100, Petitioner. Case
6-RC-7118
September 26, 1975
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On April 8, 1975, the Regional Director for Region
6 issued a Decision and Order in the above-entitled
proceeding in which he dismissed the petition seek-
ing an election in a unit limited to the truckdrivers of
the Employer's steel division. In accordance with
Section 102.67 of the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
the Petitioner filed a timely request for review of the
Regional Director's decision, contending that the Re-
gional Director had made findings of fact which were
clearly erroneous and had departed from officially
reported Board precedent.'
By telegraphic order dated June 9, 1975, the Board
granted the request for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
proceeding with respect to the issues under review
and makes the following findings.
The Petitioner seeks to represent a unit limited to
the four owner-operator truckdrivers who comprise
the Employer's steel division drivers.2 In dismissing
the petition the Regional Director concluded that the
employees sought did not constitute a functionally
distinct group apart from the Employer's freight
drivers presently represented by Local 249. For the
following reasons , we disagree with the conclusion of
the Regional Director.
The Employer, a Pennsylvania trucking corpora-
tion, maintains freight terminals at Pittsburgh and
Charleroi, Pennsylvania, and also rents space which
is used for dispatching the four steel division drivers
involved herein at the Library, Pennsylvania, home
of Jim McGee, the supervisor of the Pittsburgh and
Charleroi terminals.
1 The General Teamsters, Chauffeurs and Helpers Local 249, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, which represents the Employer's freight drivers, was permit-
ted to intervene at the hearing on the basis of a colorable contractual
interest
2 The parties stipulated that the owner-operators were employees.
The Employer began operations at the Pittsburgh
and Charleroi terminals during February and March
1974, after purchasing the operating rights of the
Capp Trucking Company and hiring a number of
Capp's former drivers. Between March and July
1974, the Employer exclusively hauled freight, which
included less than full truckloads of steel, i.e., loads
that weighed less than 25,000 pounds'
The freight division employs 9 or 10 drivers who
are represented by Local 249. These drivers report to
the Pittsburgh and Charleroi terminals and operate
only company-owned trucks. The Employer's con-
tract with Local 249 guarantees a 40-hour week to a
certain percentage of the freight drivers whom the
Employer requests to report to the terminals at the
beginning of each week. The contract also provides
the freight drivers with health, pension, and life in-
surance benefits.
In July 1974, the Employer decided to accept or-
ders for hauling full truckloads of steel, i.e., loads
that weighed more than-25,000 pounds. To provide
this type of service, the Employer hired the four own-
er-operators sought herein who comprise its steel di-
vision complement. From July until February 18,
1975, Jim McGee dispatched these owner-operators
from the Pittsburgh terminal.' Since February 18,
1975, these drivers have been dispatched by tele-
phone from McGee's Library home, approximately
15 miles from the Pittsburgh terminal; they do not
personally report to the Library location for assign-
ments. McGee's wife is responsible for dispatching
the owner-operators from Monday through Friday,
however she has no authority to hire, fire, or disci-
pline any of them. Jim McGee and Employer's presi-
dent, Hammel, handle those personnel matters, as
well as the owner-operators' grievances.
Unlike the freight drivers, the owner-operators are
paid a percentage of the charges the Employer bills
the shipper and they do not receive any health, pen-
sion, or life insurance benefits or guaranteed mini-
mum income per week. Although, as found by the
Regional Director, Jim McGee supervises both the
steel and freight division drivers, the record indicates
that since the steel division's operations began, the
owner-operators have not had any contact with the
freight division drivers and there has not been any
interchange of assignments between them. In addi-
tion, the record discloses that separate seniority lists
are maintained for the drivers of each division.
Considering the geographic separation of the steel
division drivers from the freight drivers, the different
3 The Employer' s president testified that less than full truckloads of steel
were considered freight.
During the period from July 1974 through February 18, 1975, the own-
er-operators did not report to the Pittsburgh terminal but were dispatched
by telephone.
220 NLRB No. 127
CAPP EXPRESS, INC.
dispatching arrangements for the two groups, the
lack of any contact or interchange between them, the
differences in the terms and conditions of their em-
ployment, including the maintenance of separate se-
niority lists, we conclude that the steel division driv-
ers dispatched from the Library, Pennsylvania,
location comprise a distinct group, sharing a commu-
nity of interest among themselves which differs from
that of the freight drivers, and therefore constitute a
separate appropriate bargaining unit.'
3 In view of this finding , we conclude that the steel division does not
constitute an accretion to the unit of freight drivers as urged by Local 249,
and, therefore , the current collective-bargaining agreement between Local
249 and the Employer is not a bar to the present petition . Beacon Photo
Services, Inc., 163 NLRB 706 (1967). Furthermore, as Local 249's contract
does not cover any of the truckdnvers in the requested unit found herein,
and as we have been administratively advised that Local 249 has not pre-
sented any other valid showing of interest among these employees, it will
not be accorded a place on the ballot in the election directed below. Alpha
Corporation of Texas, 130 NLRB 1292, 1294 (1961).
817
We therefore find that a question- affecting com-
merce exists concerning the representation of certain
employees of the Employer within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act,
and that the following employees of the Employer
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act:
All steel division drivers dispatched out of the
Employer's Library, Pennsylvania, location, ex-
cluding trip-lease drivers, office clerical employ-
ees, guards, professional employees, and super-
visors as defined in the Act.
[Direction of Election 6 and Excelsior footnote
omitted from publication.]
6 Local 249's record request that further consideration of the petition be
postponed pending arbitration of a grievance regarding the Employer's ini-
tial assignment of the owner-operators to the steel division is denied. The
grievance involves a different issue from that raised here.