Chicago Truck Drivers, Helpers And Warehouse Workers Union (Independent)

National Labor Relations Board - Board Decisions

May 9, 1986

279 N.L.R.B. 904 (N.L.R.B. 1986)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago Truck Drivers , Helpers and Warehouse
Workers Union (Independent) and Signal Deliv-
ery Service, Inc. and Leaseway Trucking, Inc.
Cases 13-CB-10385 and 13-CB-10546
9 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
Upon an unfair labor practice charge filed 14
September 1983 and amended 7 October 1983 by
Signal Delivery Service , Inc. (Signal ) in Case 13-
CB-10385 , the General Counsel of the National
Labor Relations Board , by the Regional Director
for Region 13, issued on 14 October 1983 a com-
plaint against Chicago Truck Drivers , Helpers and
Warehouse Workers Union (Independent) (the
Union), alleging that it violated Section 8 (b)(1)(A)
and (3) of the National Labor Relations Act.
Copies of the charge and complaint were duly
served on the parties . Thereafter , the Union filed a
timely answer admitting in part, and denying in
part, the allegations of the complaint . On 26 March
1984 the parties filed a joint motion to transfer the
case to the Board without benefit of a hearing
before an administrative law judge and submitted a
proposed record consisting of the formal papers
and the parties' stipulation of facts with attached
exhibits.
Upon an unfair labor practice charge filed 6
March 1984 by Leaseway Trucking , Inc. (Lease-
way or LTI) in Case 13-CB-10546 , the General
Counsel , by the Regional Director for Region 13,
issued on 19 March 1984 a complaint against the
Union, alleging that it violated Section 8 (b)(1)(A)
and (3) of the Act. Copies of the charge and com-
plaint were duly served on the parties . Thereafter,
the Union filed its answer admitting in part, and
denying in part, the allegations of the complaint.
On 4 June 1984 all of the parties in Cases 13-CB-
10385 and 13-CB-10546 filed a joint motion to
transfer Case 13-CB-10546 to the Board and con-
solidate it with Case 13 -CB-10385 . The parties in
Case 13-CB-10546 also agreed to waive a hearing
before an administrative law judge and submitted a
proposed record consisting of the formal papers
and the parties' stipulation of facts with attached
exhibits. On 4 September 1984 the Associate Exec-
utive Secretary, by direction of the Board , issued
an order granting the motions , approving the stipu-
lations, and consolidating the proceedings and
transferring them to the Board. Thereafter, the
General Counsel and the Charging Parties filed
briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in the case, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
Signal, a Delaware corporation, is engaged in the
business of interstate and intrastate transportation
of freight at its facilities in Chicago and Melrose
Park, Illinois, where it annually performs services
valued in excess of $50,000 for Sears, Roebuck &
Co., which is engaged in interstate commerce and
which meets the Board's jurisdictional standards
other than solely the indirect inflow or indirect
outflow standards.
Leaseway, an Illinois corporation, is engaged in
the business of intrastate transportation of freight at
its facility in Elmhurst, Illinois, where it annually
performs services valued in excess of $50,000 for
Carson Pirie Scott & Co., which is engaged in
interstate commerce and which meets the Board's
jurisdictional standards other than solely the indi-
rect inflow or indirect outflow standards.
We find that Signal and Leaseway are employers
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Units
The following employees of Signal constitute
units appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
(a) All truck drivers, helpers, and loaders em-
ployed by Signal Delivery Service, Inc. at its
facilities located at 1400 West 35th Street, Chi-
cago, Illinois and 2065 George Street, Melrose
Park, Illinois.
(b) All truck drivers, helpers, and loaders em-
ployed by Signal Delivery Service, Inc. at its
facility located at 2800 South Ashland, Chica-
go, Illinois.
At all times material herein, the Union has been the
designated exclusive collective-bargaining repre-
sentative of the units described above and has been
recognized as such representative by Signal. Such
recognition has been embodied in successive collec-
tive-bargaining agreements for each unit, the most
recent of which are effective by their terms for the
279 NLRB No. 122
CHICAGO TRUCK DRIVERS (SIGNAL DELIVERY)
period 1 April 1982 through 31 March 1985. At all
times material herein , the Union, by virtue of Sec-
tion 9(a) of the Act, has been , and is , the exclusive
representative of the units described above for the
purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
The following employees of Leaseway constitute
a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
All truck drivers and helpers employed by
Leaseway Trucking, Inc. in its general cartage
division at its facility located in Elmhurst Illi-
nois.
At all times material herein, the Union has been
the designated exclusive collective-bargaining rep-
resentative of the unit described above and has
been recognized as such representative by
Leaseway. Such recognition has been embodied in
successive collective-bargaining agreements, the
most recent of which is effective by its terms for
the period 1 April 1982 through 31 March 1985. At
all times material herein, the Union, by virtue of
Section 9(a) of the Act, has been, and is, the exclu-
sive representative of the unit described above for
the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
B. The Facts
Signal has four facilities in the Chicago area
from which it hauls freight primarily for Sears,
Roebuck & Co. Its "home delivery" service oper-
ates out of two facilities, which are located on
West 35th Street in Chicago and on George Street
in Melrose Park. Its "city shuttle" operation oper-
ates out of a facility located at South Ashland in
Chicago. A fourth facility, not involved herein, is
an interstate hauling operation. Signal is owned 80
percent by Leaseway Transportation Corp.,' a
holding company, and 20 percent by Sears.
LTI, which operates out of Elmhurst, Illinois,
has a "home delivery" service, which performs
work for two retail customers. LTI also has a
"general cartage" division, which, inter alia, pro-
vides drivers for Signal's Ashland location. Some
of these drivers have regular assignments to the
Ashland operation; some are dispatched to Ashland
on a daily basis. LTI is a wholly owned subsidiary
of Leaseway Transportation Corp.
It is undisputed that Signal and LTI for years
have had concurrent collective-bargaining agree-
ments with the Union covering separate units of
i Leaseway Transportation Corp is not a party to this proceeding
905
employees. Those separate units, as more fully de-
scribed above, consist of the following: Signal
home delivery employees; Signal city shuttle em-
ployees; LTI home delivery employees; and LTI
general cartage employees. Each bargaining unit
has been covered by a separate collective- bargain-
ing agreement , and each unit has had a separate se-
niority list.2
The three units whose merger is the object of
the Union's current grievance-arbitration demands
are Signal 's home delivery and city shuttle units
and LTI's general cartage unit.3 According to the
stlpulatiGn, "no employee at any of these facilities
has ever been permitted to `bump' (i.e., transfer
with full seniority rights) from one of the seniority
lists . . . to any other seniority list." Moreover,
during the negotiations for the current collective-
bargaining agreements, no proposals were made to
merge or dovetail any of the separate seniority
lists.
On 30 April 1983 employees of Signal's home
delivery operation filed a grievance seeking to ex-
ercise their seniority rights to transfer to the Ash-
land facility. Joint grievance hearings were held
between Signal and the Union on 6 June and 17
August 1983. At the first hearing, Signal contend-
ed, inter alia, that separate seniority lists had exist-
ed for years and that it did not want to alter the
existing contractual relationships. The employee-
grievants contended that they were seeking a
merger not only of the two Signal units, but also a
merger with LTI employees. The Union stated its
position that the three seniority lists in question
should be dovetailed, but that Signal was within its
rights to refuse to do so because of the existence of
the separate collective-bargaining agreements.
At the second hearing, Signal contended, inter
alia, that the merger issue was not grievable, but
rather was a matter for contract negotiations at the
appropriate time. The Union contended that the
three seniority lists should be combined into one
and that there should be just one contract covering
these three aspects of service provided to Sears.
The joint grievance committee was deadlocked at
the end of the meeting. On 25 August 1983 the
Union filed a demand for arbitration with the
American Arbitration Association (AAA) on the
Signal employees' grievance. Signal , however, re-
2 LTI's home delivery employees actually have been covered by two
collective-bargaining agreements, which correspond to the groups of em-
ployees who service the two retail customers, but the employees have
had a single seniority list
2 A grievance filed in 1981 by employees of LTI seeking to merge the
seniority lists of LTI's and Signal's city shuttle units was denied by a
joint grievance committee The grievants thereafter filed a suit against
Signal, LTI, the Union, and Leaseway Transportation Corp, which is
still pending against the Union and LTI in U S district court
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fused to participate in the arbitration, and the
Union's demand is still pending . As indicated
above, Signal filed the charge in Case 13-CB-
10385 on 14 September 1983.
About 20 October 1983, an employee of LTI
who was a steward at Signal 's Ashland facility re-
quested a grievance hearing on behalf of another
LTI employee who was barred by Signal from the
city shuttle operation. The Union thereafter noti-
fied LTI of its intention to process this grievance.
At a grievance committee meeting between LTI
and the Union on 17 January 1984, the Union re-
ferred to the Signal employees' grievance of April
1983 as involving substantially the same allegations.
LTI took the position, same as Signal's, that the
matter was not grievable but rather was a subject
for contract negotiations at the appropriate time.
The Union contended that the Signal and LTI em-
ployees should be considered as one and that the
separate seniority lists should be combined into
one. No decision was reached at this meeting.
On 24 January 1984 the Union filed a demand
for arbitration with the AAA on the LTI employ-
ees' grievance. By letter dated 7 February 1984,
LTI advised the AAA of its position that the
grievance was "nonarbitrable and illegal" and that,
like Signal , it would refuse to participate in the ar-
bitration pending resolution of unfair labor practice
charges it was preparing to file with the Board. As
indicated above, LTI filed the charge in Case 13-
CB-10546 on 6 March 1984.
C. Contentions of the Parties
The General Counsel, noting that the parties
have historically recognized the appropriateness of
separate bargaining units and embodied such recog-
nition in separate collective-bargaining agreements,
contends that the Union's attempt to merge the
units is an attempt to compel a midterm modifica-
tion of the three collective-bargaining agreements.
The General Counsel therefore contends that by
using the compulsion of an arbitration proceeding
to achieve an end that is properly resolved at the
bargaining table, the Union has failed and refused
to bargain in good faith with the employers in vio-
lation of Section 8(b)(3). The General Counsel fur-
ther contends that the Union's efforts to apply the
terms of certain collective-bargaining agreements
to employees other than those in the unit for which
those agreements were negotiated interfered with
employee rights in violation of Section 8(b)(1)(A).
Service Employees Local 32B-32J (Allied Mainte-
nance Corp.), 258 NLRB 430 (1981); Electrical
Workers IBEW Local 323 (Active Enterprises), 242
NLRB 305 (1979). The General Counsel additional-
ly contends that the Union's grievances, if success-
ful, would force Signal and LTI to accept a multi-
employer bargaining unit, contrary to the parties'
longstanding bargaining history . Finally, the Gen-
eral Counsel contends that the Union has no "co-
lorable claim" to the merger of the Signal and LTI
units based on the common ownership of Signal
and LTI or on the fact that they perform work for
a single customer , and further that the other factors
normally considered in determining whether two
employers constitute a single employer-e.g., bar-
gaining history, centralization of management-all
weigh against the Union 's position.
The Charging Parties' brief makes the identical
arguments as that of the General Counsel. The
Union submitted no brief to the Board.
D. Discussion
An employer and a union may voluntarily agree
to merge separate bargaining units, but the enlarge-
ment of a bargaining unit is not a mandatory sub-
ject of bargaining under the Act. Thus, in the ab-
sence of mutual consent, one party may not insist
on a change in the scope of an existing bargaining
unit.4 In the instant case, it is undisputed that the
Union has demanded the arbitration of grievances
seeking to merge three historically separate bar-
gaining units. We agree with the General Counsel
that, in the face of the employers' refusals to par-
ticipate in such arbitration, the Union's insistence
on arbitration was violative of Section 8(b)(1)(A)
and (3) of the Act.
In Active Enterprises, above, cited by the General
Counsel, the Board found that the respondent
union violated Section 8(b)(3) by demanding that
negotiations be conducted on a broader basis than
the established units, by insisting that the terms and
conditions of employment governing employees in
the "commercial" unit be applied to employees in
the "residential" unit, and by seeking to enforce
through the grievance-arbitration procedure the
terms of the commercial agreement against work
done by employees in the residential unit. In so
finding, the Board explained that the violation of
Section 8(b)(3) consisted in the respondent' s unlaw-
ful efforts to enlarge the commercial unit to in-
clude the residential unit , i.e., the respondent could
not lawfully demand the merger of the two histori-
cally separate units without the employer's consent.
The Board further found, inter alia, that the re-
spondent's conduct in seeking to enforce the com-
mercial agreement against employees in the resi-
dential unit had the effect of restraining and coerc-
4 Utility Workers Local 111 (Ohio Power Co.), 203 NLRB 230, 238
(1973), cf Allied Chemical Workers v Pittsburgh Plate Glass Co, 404 US
157, 164 (1971)
CHICAGO TRUCK DRIVERS (SIGNAL DELIVERY) 907
ing employees in violation of Section 8(b)(1)(A).
Allied Maintenance , above, also is applicable. In
that case the Board , in finding that the respondent
union unlawfully insisted that the employer's
"Dalton school" employees were covered by a
multiemployer association contract , specifically
relied on the fact that the union previously had
consented to separate bargaining with the employer
for a unit confined to the Dalton school employees.
We therefore find , in agreement with the Gener-
al Counsel , that the Union violated Section 8(b)(3)
by insisting on the arbitration of grievances seeking
to merge three separate bargaining units-by dove-
tailing seniority lists or otherwise-contrary to the
parties ' longstanding bargaining agreements. We
further find that the Union's efforts to apply the
terms of collective-bargaining agreements to em-
ployees other than those for which the agreements
were negotiated operated to restrain and coerce
employees in violation of Section 8(b)(1)(A).
Finally, the Union does not contend that its arbi-
tration demands have a reasonable basis in fact or
law. It is not seeking to arbitrate whether a merger
has occurred , but is seeking to force, through arbi-
tration , the merger of historically separate units.5
As the Union 's arbitration demands are contrary to
its statutory collective-bargaining obligations, the
Union 's arbitration demands have an objective that
is illegal under Federal law. Accordingly, Bill
Johnson 's Restaurants v. NLRB, 461 U.S. 731, 737
fn. 5 (1983 ), is not applicable to this case. See
Teamsters Local 705 (Emery Air Freight), 278
NLRB 1303 ( 1986).
CONCLUSIONS OF LAW
1. Signal Delivery Service, Inc. and Leaseway
Trucking, Inc. are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Chicago Truck Drivers, Helpers and Ware-
house Workers Union (Independent) is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. By insisting on the merger of separate estab-
lished bargaining units of Signal employees and
Leaseway employees and by insisting on the arbi-
tration of grievances which demand the merger of
such separate established bargaining units, a non-
mandatory subject of bargaining , the Union has re-
fused to bargain collectively with Signal and
Leaseway and thereby has engaged in unfair labor
practices within the meaning of Section 8(b)(3) of
the Act.
5 The Union admitted the complaint allegations that it "has insisted
on the merger of the units " and that it "has insisted upon arbitration
of a grievance which demands the merger of units "
4. By processing grievances and insisting on arbi-
tration of grievances demanding the dovetailing of
the seniority rights of the separate established bar-
gaining units of Signal employees and Leaseway
employees , the Union has restrained and coerced
employees and thereby has engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A)
of the Act.
5. The above-described unfair labor practices are
unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order the
Respondent to cease and desist therefrom and to
take certain affirmative action designed to effectu-
ate the policies of the Act, including withdrawal of
its grievance and arbitration demands which seek
to compel the merger of separate established bar-
gaining units by dovetailing separate seniority lists
or otherwise. See Allied Maintenance Corp., above
at fn. 3.
ORDER
The National Labor Relations Board orders that
the Respondent, Chicago Truck Drivers, Helpers
and Warehouse Workers Union (Independent), Chi-
cago, Illinois, its officers , agents, and representa-
tives, shall
1. Cease and desist from
(a) Refusing to bargaining collectively with
Signal Delivery Service, Inc. and Leaseway Truck-
ing, Inc . by insisting on the merger of separate es-
tablished bargaining units of Signal employees and
Leaseway employees, and by insisting on arbitra-
tion of grievances which demand the merger of
such units, a nonmandatory subject of bargaining.
(b) Restraining and coercing employees in sepa-
rate established bargaining units by processing
grievances and insisting on arbitration of griev-
ances demanding the dovetailing of the seniority
rights of employees in such separate established
bargaining units.
(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Withdraw its grievance and arbitration de-
mands , which seek to compel Signal and Leaseway
to merge their separate established bargaining units
by dovetailing separate seniority lists or otherwise.
(b) Post at its office and meeting halls in Chica-
go, Illinois , copies of the attached notice marked
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Appendix."s Copies of the notice, on forms pro-
vided by the Regional Director for Region 13,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to members are customari-
ly posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by Signal
Delivery Service, Inc. and Leaseway Trucking,
Inc., if willing, at all places where notices to em-
ployees are customarily posted.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Signal Delivery Service, Inc. and Leaseway Truck-
ing, Inc . by insisting on the merger of their sepa-
rate established bargaining units, and by insisting
on arbitration of grievances which demand the
merger of such units, a nonmandatory subject of
bargaining.
WE WILL NOT restrain or coerce you by process-
ing grievances and insisting on arbitration of griev-
ances demanding the dovetailing of the seniority
rights of employees in separate established bargain-
ing units.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL withdraw our grievance and arbitra-
tion demands which seek to compel Signal and
Leaseway to merge the separate established bar-
gaining units by dovetailing separate seniority lists
or otherwise.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
CHICAGO TRUCK DRIVERS, HELPERS
AND WAREHOUSE WORKERS UNION
(INDEPENDENT)