Frank Hager, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1977

230 N.L.R.B. 476 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank Hager, Inc. and General Drivers, Warehouse-
men and Helpers, Local 89, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Petitioner. Case 9-RC-11480
June 27, 1977
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer James E.
Horner of the National Labor Relations Board.
Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, by direction
of the Regional Director for Region 9, this case was
transferred to the Board for Decision. Thereafter, the
Employer and Petitioner filed briefs, and the Em-
ployer filed a motion to reopen the record.1
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
On the entire record in this case, the Board finds:
1. The parties stipulated, and we find, that the
Employer is a Kentucky corporation engaged in the
business of transporting liquids, by truck, from its
place of business in Louisville, Kentucky, to various
States in the United States and in the course of the
conduct of its operations annually derives gross
revenues in excess of $50,000. Accordingly, we find
that the Employer is engaged in commerce within the
meaning of the Act and it will effectuate the policies
of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer.2
3. The Employer contends that the Independent
has been the collective-bargaining representative of
' The Employer moved to reopen the record to adduce testimony
relevant to newly discovered evidence; i.e., letters allegedly signed by unit
employees indicating that they are not interested in being represented by, or
affiliated with, Petitioner. Should the Board deem reopening the record
unnecessary the Employer has, in the alternative, moved the admission of
the letters into evidence. It is well settled that a showing of interest is not
subject to attack on grounds that the authorization cards on which it is
based have been revoked or withdrawn and that the question of whether
particular employees have changed their minds can best be resolved on the
basis of an election by secret ballot. General Dynamics Corporation, Convair
Division, 175 NLRB 1035 (1969). Accordingly, the Employer's motions are
denied.
2 Frank Hager, Inc., Employees Independent Union (herein called the
230 NLRB No. 50
its truckdrivers and shop employees since it was
organized in 19733 and that the current contract,
extending from August 1, 1975, to July 31, 1978, is a
bar to the conduct of an election herein. The
Petitioner, on the other hand, contends that this
contract is not a bar inasmuch as it is not the result
of bona fide negotiations.
In representation proceedings, whether a collec-
tive-bargaining agreement constitutes a bar is gener-
ally determined from the face of the contract and not
from extrinsic evidence.4 The Board has, however, in
implementing its discretionary contract-bar rules,
developed exceptions to this general principle where
it appears that the alleged contract is not "one
imparting sufficient stability to the bargaining
relationship to justify our withholding a present
determination of representation." 5 For the reasons
set forth below, we conclude that consideration of
extrinsic evidence in the instant case is warranted.
The Employer contends that it negotiated and
signed the purported current collective-bargaining
agreement with the Independent following the
expiration of a prior contract which served as the
basis for the negotiations. Although the current
contract appears on its face to be a valid collective-
bargaining agreement, the undisputed record reveals
that bona fide negotiations in fact did not occur.
Thus, it is undisputed that the three employees, West,
Brummett, and Miller, whose signatures appear on
the contract on behalf of the Independent, were
separately summoned into the office of Frank Hager,
the Employer's president, and directed by him to sign
a piece of paper which later became the signatory
page of the purported contract. While, at the time,
Hager made some reference to a contract, West and
Brummett testified without contradiction that they
were not shown any such document. 6 Miller testified
that he was given a draft contract by Hager which
was almost identical to the 1973-75 contract. After
Miller made changes in this draft, the final page was
removed and Miller signed it. Hager told Miller that
to save time the draft would be retyped and then
attached to the signatory page. Brummett and West
were both told that, if they signed the paper before
them, employees would receive a wage increase.
However, neither was given any opportunity to
Independent), entered an appearance at the hearing, but declined to
intervene.
3 The record contains no evidence as to the circumstances surrounding
the formation of the Independent and the Employer's initial recognition of
that labor organization.
4 See, e.g., Loree Footwear Corporation, 197 NLRB 360 (1972), and cases
cited therein.
5 Raymonds, Inc., 161 NLRB 838, 840 (1966); see also Emanuel
Birnbaum and John W. Jones d/b/a Silver Lake Nursing Home, 178 NLRB
478 (1969).
6 In fact, neither West nor Brummett saw the alleged contract until the
instant hearing.
476
FRANK HAGER, INC.
discuss the amount of the increase, nor permitted to
see the other contract terms which the Employer now
contends were the result of negotiations with the
Independent. In fact, according to West he signed
the paper as requested because he was told that, if he
did not, he would lose his job.
It is clear that the contract alleged to be a bar
herein was not made available to employees until
April 1976, more than 9 months after it was signed.
Furthermore, at that time only a few copies were
distributed to employees and then only after employ-
ees complained that the Independent was dormant
and demanded "full contract negotiations." Indeed,
the record indicates that, at the same meeting at
which Hager distributed the contract, he raised the
possibility of pay increases exceeding those permitted
by the contract.
Furthermore, with respect to the 1973-75 contract
which the Employer contends formed the basis of the
alleged negotiations, there is little evidence to
substantiate that said contract in fact existed. While
Miller testified that the draft contract Hager present-
ed to him was almost identical to the 1973-75
contract, on cross-examination he admitted that he
had never seen that contract in its entirety before
going to Hager's office in August 1975, and that
previously he had seen only portions of it sometime
in early 1973. Further, although the Employer's vice
president, Ray Thompson, testified that he always
had a copy of a current contract which job applicants
could see upon request, inasmuch as both West and
Brummett denied ever having seen the 1973-75
contract, 7 it appears that if it did exist at all copies
were not readily available to the employees.
On these facts, we cannot find the Employer's
agreement with the Independent to be the product of
bargaining, collective or otherwise. 8 Instead, it
appears to have been assembled by the Employer
after signatures were secured from individuals on a
separate piece of paper which the Employer later
attached as the signatory page of the document now
alleged to be a collective-bargaining agreement. With
the exception of Miller, the signatories were never
shown a draft of the Employer's proposals and were
thereby precluded from commenting on the con-
tract's provisions or making counterproposals. Fur-
7 Another employee witness testified that, in spite of requests to his
supervisor, he was never shown a copy of a contract between the Employer
and the Independent.
s See in this regard Austin Powder Company, 201 NLRB 566 (1973).
Having found that the Employer's contract with the Independent is not
a bar to the instant petition, we find it unnecessary to pass upon Petitioner's
contentions that the Independent is defunct and that a schism existed in the
Independent.
1' Inasmuch as the employee status of the owner-operators, while no
longer disputed by the parties, was raised at the hearing, and a bargaining
unit may not include individuals who are not employees within the meaning
of Sec. 2(3) of the Act, we find it necessary to determine whether the owner-
thermore, at least one employee's signature was
secured only after he was threatened with termina-
tion. That some reference was made to the signing of
a contract between the Independent and the Employ-
er, or that the employees who signed believed that
doing so would result in a pay increase to fellow
workers, can only establish that no bargaining
occurred. Under such circumstances, we find that the
contract does not reflect an agreement between the
parties reached through the collective-bargaining
process, and therefore does not constitute a bar to
the instant petition.9
Based on the foregoing, we find a question
affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the
meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act.
4. Petitioner seeks to represent a unit composed
of all single owner-operators,10 drivers, mechanics,
tank cleaners, and shop employees of the Employer
employed at its terminal, at Louisville, Kentucky,
excluding all office clerical employees, dispatchers,
professional employees, guards, and supervisors as
defined in the Act. The Employer does not contend
that this unit is inappropriate for purposes of
collective bargaining, but rather concedes that it
encompasses the same employees allegedly repre-
sented by the Independent.
Inasmuch as there is no contention or evidence
that the unit sought is inappropriate and the Board
has found similar units appropriate in the past," we
find the following employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All single owner-operators, drivers, mechanics,
tank cleaners, and shop employees of the Em-
ployer employed at its terminal, Louisville,
Kentucky, excluding all office clerical employees,
dispatchers, professional employees, guards, and
supervisors as defined in the Act.
operators are employees or independent contractors. In this regard, the
record establishes that the Employer exercises pervasive control over the
owner-operators' mode of operation, particularly the assignment of runs
including the distance, the nature of the load, and to whom they deliver, the
maintenance of their equipment, the selection of their insurance, and the
performance standards with which they must comply. We find, therefore,
that the owner-operators herein are not independent contractors, but
employees under the Act, and that the unit sought by Petitioner including
the owner-operators is appropriate. See Dixie Transport Company, 218
NLRB 1243 (1975); Bowman Transportation, Inc., 142 NLRB 1093 (1963).
" See, e.g., Norfolk, Baltimore and Carolina Lines, Inc., 175 NLRB 209
(1969); Bowman Transportation, Inc., supra.
477
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Direction of Election 12 and Excelsior footnote
omitted from publication.]
12 Inasmuch as the Independent did not intervene in the instant
proceeding its name will not appear on the ballot. We shall, however, permit
it to move to have its name placed on the ballot on written request to the
Regional Director within 10 days of issuance of this Decision and Direction
of Election.