Dura-Vent Corp.

National Labor Relations Board - Board Decisions

May 2, 1978

235 N.L.R.B. 1300 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dura-Vent Corporation and Auto Truck Drivers
Teamsters Local 85, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America and Sheet Metal Workers Interna-
tional Association, Local No. 355, Party to the
Contract. Case 20-CA-12971
May 2, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On January 16, 1978, Administrative Law Judge
Harold A. Kennedy issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his 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 Respondent, Dura-Vent Cor-
poration, Redwood City, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
HAROLD A. KENNEDY, Administrative Law Judge: This
case was heard in San Francisco, California, on November
15, 1977.1 The complaint of the General Counsel of the
National Labor Relations Board, issued on August 18 and
based on a charge filed on June 8, alleges (pars. VIII, IX,
and X) that the Respondent Employer, Dura-Vent Corpo-
ration, violated Section 8(a)(1), (2), and (3) of the National
Labor Relations Act, as amended (29 U.S.C., 151, et seq.)
by: (a) Executing in May 1977 an "Addendum" to its
current collective-bargaining contract (effective through
January 15, 1978) with the Sheet Metal Workers Interna-
tional Association, Local No. 355, so as to extend coverage
to Respondent's truckdrivers; (b) making the addendum
I All dates are for the year 1977 unless otherwise indicated.
2 Respondent makes metal chimneys at its Redwood City facility, its
only plant.
235 NLRB No. 176
and collective-bargaining agreement effective since on or
about May 2; (c) distributing and requiring its truckdrivers
to sign Sheet Metal Workers membership cards in May and
June as a condition of employment; and (d) telling such
truckdriver employees that Respondent would pay dues
and initiation fees if they joined the Sheet Metal Workers.
According to the complaint, all of these acts violated
Sections 8(a)(1) and (2), and the conduct alleged in (a) and
(b) above violated Section 8(a)(1) and (3).
Respondent's answer and stipulations eliminate several
issues, including the following:
1. Respondent is a California corporation engaged in
the manufacture and sale of metal products.2 Its place of
business is located in Redwood City, California. During
the past calendar year Respondent sold to out-of-state
customers goods valued in excess of $50,000 and is
admittedly an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Sheet Metal Workers International Association, Lo-
cal No. 355, and Respondent signed a collective-bargaining
agreement covering all of Respondent's production and
maintenance employees at its Redwood City facility for the
period January 15, 1975, through January 15, 1978. The
agreement contains a union-security provision that requires
employees to become members of the Sheet Metal Workers
Union after 30 days of employment.
3. Sheet Metal Workers International Association, Lo-
cal No. 355, (Union) and Auto Truck Drivers Teamsters
Local 85, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Teamsters)
are admittedly labor organizations as defined in Section
2(5) of the Act.
4. At all times relevant, John R. Jacklich (incorrectly
spelled Jacklick in the complaint), Respondent's executive
vice president, and George F. Sullivan, acted as agents on
Respondent's behalf within the meaning of Section 2(2)
and (13) of the Act and/or as supervisors within the
meaning of Section 2(1 1) of the Act.3
Respondent admitted that it executed the addendum to
the collective-bargaining agreement referred to in the
complaint but otherwise denied the charges set forth above.
It also denied paragraph VII of the complaint which
alleged that the Sheet Metal Workers at no relevant time
represented an uncoerced majority of Respondent's truck-
driver employees.
These other facts were developed at the hearing:
I. The Sheet Metal Workers Union has represented
Respondent's production and maintenance workers for
approximately 20 years. At one time, but apparently not
since about 1962, the collective-bargaining agreements
between the Union and Respondent had provided for
truckdriver classifications and pay rates.
2. In February 1977 Respondent decided to consider
shipment of its products to distant places by leasing two-
unit diesel tractor-trailer trucks, known as "semi's," from
Ryder Truck Rental and employing its own "over-the-road
drivers" to drive them. It began with the lease of one truck-
trailer and employment of one team of drivers, Billie A.
3 Sullivan had been plant supenntendent for Dura-Vent until the spring
of 1977 when he became traffic manager. He left Respondent's employ early
in September.
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DURA-VENT CORPORATION
Lafever and Bob Boyd on February 23. John Jacklich, who
interviewed and employed these drivers, told the drivers
that the job would "not be union" and would pay 20 cents
a mile (later increased to 21 cents), split evenly between the
two drivers. The arrangement was to be a "trial run" of 90
days or so "to see if it would work out better than shipping
by common carrier."
3. The Company had, for many years prior to Febru-
ary, relied exclusively on common carrier truck lines to
ship its goods to distant places. Respondent continues to
ship some of its products by common carrier.4
4. The new transportation arrangement was considered
successful, and as a result more tractor-trailers were leased
and more over-the-road drivers were hired to drive them.
At the time of the hearing 11 or 12 tractor trailers were on
lease, and 22 or 24 over-the-road drivers were on the
payroll.
5. George Sullivan, who had been employed as Re-
spondent's plant superintendent, was made traffic manager
in March or April "to oversee the over-the-road trucking
operation, hiring the drivers, getting new equipment,
securing backhauls."
6. The over-the-road drivers alternate driving and
sleeping so the tractor-trailers can be driven almost
continuously. The drivers call into Respondent's office
almost daily while on the road. Allowances are paid to the
drivers for meals ($45 a day) and motels on the weekend
($20 each on Saturday and Sunday). A medical plan covers
the over-the-road drivers. Such drivers start their runs by
picking up the truck unit at Ryder. The truck is then driven
to Respondent's plant where the loaded trailer is waiting.
Such drivers help unload on the road but perform no
loading or other work at Respondent's plant. They only go
to Respondent's plant before a trip to pick up a load and
upon their return to turn in their expense vouchers and
pick up their paychecks. The over-the-road drivers are
usually at home for 2 days between trips. Only on rare
occasions do the over-the-road drivers make local deliver-
ies, in which event they are paid a "lump sum" payment for
such work.5
7. Respondent leases and has leased over the years one-
unit trucks, called "bobtail trucks," for making delivery of
its products in the local area. At the time of the hearing
Respondent had two bobtail drivers.6 Such trucks are
driven by drivers who report daily to Respondent's plant
each morning and also perform other work in Respon-
dent's warehouse. They are paid an hourly wage. The over-
the-road drivers have virtually no contact with the bobtail
drivers.
8. Respondent's over-the-road drivers must hold a
Class I driver's license. They must take and pass a Federal
4 Executive Vice President Jacklich estimated that 60 percent of the
Company's deliveries are still made by common carrier.
5 Billie Lafever, one of three over-the-road drivers who testified, said he
made only one local run (to Santa Rosa, California).
6 Jacklich said Respondent has had three to four one-unit trucks on lease
for bobtail or local use. Bobtail trucks have included covered vans and
flatbed diesel open-stake trucks.
I Union Business Agent Jaques testified with respect to these excluded
articles as follows:
. . . We discussed that the holidays wouldn't apply because they were
getting mileage; and that the shifts wouldn't apply because they were
examination administered by the Department of Transpor-
tation. Such examination includes an eye test, a written
test, and a road test. Regulations of the Department also
require such drivers to maintain a daily log book while on
cross-country trips. The bobtail drivers, on the other hand,
are required only to have a Class 3 license.
9. When the current collective-bargaining agreement
was negotiated in December 1974, there was no discussion
about the possibility of covering any over-the-road drivers.
The bobtail drivers have always been considered covered
by the collective-bargaining agreement because they also
worked as production workers.
10. Around mid-April Jacklich advised Union Business
Agent Jaques that the over-the-road drivers in Respon-
dent's employ wanted to join the Sheet Metal Workers
Union. Jaques responded that this would be "no problem."
Jacklich drafted the addendum (G.C. Exh. 3) to the current
collective-bargaining agreement and transmitted it to
Jaques on or about May 2. Jaques thereupon signed and
returned it. By the terms of the addendum, the Company
recognized the Union as bargaining representative for its
employees, "including drivers"; wages for the over-the-
road drivers were set at 20 cents per mile; and all other
terms of the current collective-bargaining agreement were
made applicable to the over-the-road drivers except for
articles V (hours and overtime), VI (holidays), and VII
(shifts). 7 The over-the-road drivers were not asked whether
they wished to join the Union before the addendum was
signed. The three over-the-road drivers who testified said
they had never indicated a desire to join the Union.
11. The then traffic manager, Sullivan, was given a
copy of the addendum and instructed to have the over-the-
road drivers join Local No. 355, and "most of them signed
the papers." Applications of 19 over-the-road drivers were
introduced into evidence by Respondent, most of which
were dated in June, July, or August. Some of the drivers
went to the union office in Oakland to join, and some
signed applications which had been supplied by Sullivan in
the Company's plant. Sullivan told all such drivers that the
Company would pay the union dues and initiation fees.
The three over-the-road drivers who testified - the three
Lafever brothers, Billie, Bennie, and Rickey - never did
join, however. The over-the-road drivers were told that
joining of the Union was a condition of employment, but
none of the three was ever terminated.s
Counsel for the General Counsel has pointed out in her
brief a number of established legal propositions having
relevance to the case at bar:
1. That "over-the-road drivers constitute a homoge-
neous, functionally distinct group" which "the Board has
traditionally accorded the right of self-determination,"
driving nights; and the overtime - those provisions would be
impractical to apply in the contract.
a Bennie and Rickey Lafever both testified that they were asked by
Dura-Vent President Bissel to join the Sheet Metal Workers Union. Rickey
said that Bissel told him and his brother "in no uncertain terms, that it was
to keep another union from coming into the place." Bennie and Rickey said
Sullivan had also spoken to them about three times about signing up with
the Union. Billie Lafever testified that Sullivan had told him that the Union
was "one of the weakest Unions in the world," and "we arejust doing this to
protect the Company's ass, to keep the Teamsters Union out."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even where there is a "history of bargaining on a broader
basis." Sonoco Products Co., 193 NLRB 1 (1971).
2. An employer violates Section 8(a)(1) and (2) of the
Act if he recognizes a union and enters into a collective-
bargaining agreement with it when the union does not in
fact represent a majority of employees in the appropriate
bargaining unit.9
3. An employer violates Section 8(a)(1) and (2) by
requesting employees to join a union with which it has an
agreement containing a union-security provision "when
there is no showing that the employees expressed a desire
to be represented by [the union] or that [the union]
represented an uncoerced majority." Penn Traffic Compa-
ny, Riverside Division, 219 NLRB 189 (1975). See also
Midwest Piping & Supply Co., Inc., 63 NLRB 1060 (1945),
and The Hartz Mountain Corporation, 228 NLRB 492
(1977).
4. An employer violates Section 8(a)(1) and (2) by
offering to pay dues and initiation fees for employees to a
union which does not represent them. Stockton Door Co.,
Inc., 218 NLRB 1053 (1975).
It is clear under Board precedent that Respondent's
over-the-road drivers may, if they wish, constitute a
separate bargaining unit for purposes of collective bargain-
ing. Unlike Respondent's bobtail drivers who have always
been included in Respondent's production and mainte-
nance employees unit because they also work as produc-
tion workers, the over-the-road drivers spend virtually all
of their time away from the plant and engage in no
production activity or other work at Respondent's plant.
They work different hours and are paid on an entirely
different basis. There is no interchange of work and
virtually no contact between the two types of drivers. Over-
the-road drivers must, moreover, meet more stringent
licensing requirements.
It is also apparent that Local No. 355 did not represent a
majority of the over-the-road drivers when Respondent
and the Union executed the addendum to their collective-
bargaining agreement on May 2. Only one of the applica-
tions in evidence (Owens) bears a date earlier than May.
Two of the applications (Jager and Duncan) indicate that
they were signed in May. All of the other applications were
signed in a subsequent month. But it is impossible to say
that any membership card, regardless of its date of signing,
was prepared and submitted without coercion.
9 The primary authority for this proposition is International Ladies'
Garment Workers' Union [Bernhard-Altnmann Texas Corp.] v. N. LR.B., 366
U.S. 731 (1961). In that case representatives of the employer, Bernhard-
Altmann, and the union met and signed at the employer's home office in
New York City a "memorandum of understanding" covering "all produc-
tion and shipping employees" at the employer's San Antonio plant where a
strike was in progress. The company thought, erroneously, that the union
represented a majority of the unit's employees, although the union did so
about 5 weeks later when the formal agreement was signed. The court said
the fact that the union represented the majority of the unit at the time of the
execution of the formal agreement did not alter the fact that the company
was acting unlawfully in the interim. In fact, the court indicated that the
memorandum of agreement provided the union "a deceptive cloak of
authority with which to persuasively elicit additional employee support."
The case also holds that a union violates the Act by undertaking to act as
the bargaining representative when it does not have majority support,
irrespective of any bonafide belief. The union in the instant case, however,
has not been charged with violating the Act. See also Stockton Door Co.,
Inc., 218 NLRB 1053 (1975).
The record indicates that Respondent imposed Local
No. 355 upon a nonconsenting majority of the over-the-
road drivers and thereby abridged their right "to bargain
collectively through representatives of their own choosing"
or "to refrain from such activity." Such interference with
Section 7 rights of the over-the-road drivers constituted
violation of Section 8(a)(1) of the Act. Also, by extending
recognition of the Union for its newly employed over-the-
road drivers, Respondent violated Section 8(a)(2) of the
Act, which forbids an employer to "contribute ...
support" to a labor organization. Paying of dues and
initiation fees for such drivers also constituted an unlawful
contribution of support of a labor organization by Respon-
dent. Further, Respondent violated Section 8(a)(3) of the
Act by coercing the over-the-road drivers to choose the
Sheet Metal Workers Union as their bargaining representa-
tive under threat of being terminated if they did not. The
obvious effect was to "encourage" membership in the Sheet
Metal Workers Union and to "discourage" membership in
any other labor organization.
Respondent defends on the basis that the over-the-road
drivers were a proper accretion to the existing union
contract and cites Eidal International Corporation, 224
NLRB 911 (1976), as controlling. The General Counsel's
brief, however, persuasively points out that the Eidal case is
significantly different from the case at bar and is therefore
not applicable here. In that case the Board had certified the
unit as properly including "all production and mainte-
nance employees, warehousemen and truckdrivers," and
there had been, through the years, "local and over-the-road
truckdrivers in the Respondent's employ to a lesser or
greater extent." But here the Board has never certified the
bargaining unit at Respondent's facility in the instant case;
the unit description in the agreement does not include
truckdrivers; and there had been no over-the-road drivers
before February except on a very limited basis some 15
years or so ago. Also in the Eidal case, the union involved
(Boilermakers) contacted the employer and negotiated for
the new over-the-road truckdrivers a contract which "ac-
corded all the contractual benefits." In the instant matter,
Sheet Metal Workers Local No. 355 readily accepted
Respondent's proposed pay structure and other terms of
employment for the over-the-road drivers without even
consulting with them.10
LO The General Counsel points out that the grievance procedure
contained in the current collective-bargaining agreement as a practical
matter is not "available to the drivers since a grievance must be filed within
three working days to be timely, and the drivers are usually on the road for a
minimum of seven days." The Administrative Law Judge in the Eidal case,
whose decision was upheld by the Board, stated:
In view of the inclusion of "truckdrivers" in the unit first certified by
the Board in 1949 and recertified in 1961, the successive contracts
which included "truckdrivers" in the recognition clause, the fact that all
truckdrivers received all the benefits of the contract, including the
fringe benefits, and the fact that the parties to the contract bargained
for the pay scale of the full-time over-the-road truckdrivers, I have
concluded that they were covered by the contract and bound by its
provisions.
In Penn Traffic, supra, the Board said that "interchange and transfer of
employees from the existing unit to the newly acquired operation" is the
factor most commonly relied on by the Board in finding accretion."
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DURA-VENT CORPORATION
Respondent also contends that article II, section 2, of its
collective-bargaining agreement with the Sheet Metal
Workers "required" the over-the-road drivers to "be
brought under it." A fair reading of the provision, in my
view, does not compel such a result as the new over-the-
road operation did not involve "new items for manufac-
ture" or "new mechanical operations." II And, if it did, the
provision could not have any validity as it would be in
conflict with prescriptions of the Act.
Based on the foregoing, and the whole record, I make the
following:
CONCLUSIONS OF LAW
I. Respondent Dura-Vent Corporation is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Auto Truck Drivers Teamsters Local 85, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and Sheet Metal Workers
International Association, Local No. 355, are labor organi-
zations within the meaning of Section 2(5) of the Act.
3. By recognizing the Sheet Metal Workers Internation-
al Association, Local No. 355, as the collective-bargaining
representative of its over-the-road drivers, by extending
and maintaining the collective-bargaining agreement
(which contains a union-security provision) in effect
between Respondent and the Sheet Metal Workers Union
to over-the-road drivers, and by payment and offering to
pay initiation fees and dues to said Union for said drivers,
Respondent has violated Section 8(a)(1), (2), and (3) of the
National Labor Relations Act, as amended.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (2), and (3) of
the Act, I shall recommend issuance of an order for
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the pur-
poses of the Act.
The violations require an order that will require Respon-
dent to withdraw and withhold recognition from Sheet
Metal Workers International Association, Local No. 355,
as representative of its over-the-road drivers unless and
until such time as Local No. 355 is certified by the
National Labor Relations Board as having exclusive
majority representative status among said drivers in a unit
found appropriate; also, that it cease giving effect to the
current agreement with Local No. 355 insofar as over-the-
road drivers are concerned.
it Sec. 2, art. II. of the contract provides:
If, during the term of this agreement, the Company should introduce
new items for manufacture, or should new mechanical operations be
introduced, the Company and the Union agree to resolve any problems
arising from such by joint conference. The results of such conference
shall be stipulated in an Addendum "A" to be attached hereto.
"2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
Upon the foregoing findings of fact, conclusions of law,
the entire record and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 1'2
The Respondent, Dura-Vent Corporation, Redwood
City, California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Contributing support and assistance to the Sheet
Metal Workers International Association, Local No. 355,
or to any other labor organization.
(b) Recognizing Local No. 355 as the bargaining repre-
sentative of its over-the-road drivers unless and until said
labor organization shall have demonstrated its exclusive
majority status pursuant to a Board-conducted election in
a unit found appropriate for such drivers.
(c) Giving effect to the collective-bargaining agreement
effective through January 15, 1978, between Respondent
and Local No. 355, or to any extension, renewal, modifica-
tion, or supplemental thereto insofar as the over-the-road
drivers are concerned; without prejudice, however, to any
wages, hospitalization or any other economic benefit that
may have accrued to such drivers.
(d) Requiring membership in or the payment of initiation
fees, dues, or other.money to Local No. 355, or any other
labor organization, except as permitted by Section 8(aX3)
of the Act.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Withdraw and withhold recognition from the Sheet
Metal Workers International Association, Local No. 355,
as the exclusive bargaining representative of its over-the-
road drivers unless and until such labor organization shall
have demonstrated its exclusive majority status pursuant to
a Board-conducted election in a unit found appropriate for
such drivers.
(b) Cease applying its collective-bargaining agreement
with Local No. 355 to its over-the-road drivers (without
prejudice to any wages, hospitalization, or other rights that
may have accrued).
(c) Post at its Redwood City, California, facility copies of
the attached notice marked "Appendix." 13 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent or its
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
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.
13 In the event that 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 National 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."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insure that notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute support to Sheet
Metal Workers International Association, Local No.
355 or any other labor organization.
WE WILL NOT recognize Local No. 355 as the
bargaining representative of our over-the-road drivers
unless and until said labor organization shall have
demonstrated its exclusive majority status pursuant to a
Board-conducted election in a unit found appropriate
for such drivers.
WE WILL NOT give effect to the bargaining agreement
we have with Local No. 355, effective through January
15, 1978, insofar as our over-the-road drivers are
concerned (without prejudice to wages, hospital bene-
fits, or other rights that may have accrued).
WE WILL NOT require membership in, or the payment
of initiation fees, dues, or other money, to Local No.
355, or any other labor organization, except as permit-
ted by Section 8(aX3) of the National Labor Relations
Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed them in Section 7 of the Act.
DURA-VENT CORPORATION
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