Hackney Corp.

National Labor Relations Board - Board Decisions

May 27, 1976

224 N.L.R.B. 197 (N.L.R.B. 1976)

HACKNEY CORPORATION 197
Hackney Corporation and National Union of Long
Haul Truckers of America , Petitioner Case 10-
RC-10493
May 27, 1976
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On December 10, 1975, the Acting Regional Di-
rector for Region 10 issued a Decision and Direction
of Election in the above-entitled proceeding in which
he found the Petitioner's requested unit of the
Employer's long haul truckdrivers may appropriately
be severed from an established unit of production
and maintenance employees currently represented by
the Intervenor, United Steelworkers of America,
AFL-CIO Thereafter, in accordance with the Na-
tional Labor Relations Board Rules and Regulations,
Series 8, as amended, the Employer and the Interve-
nor filed timely requests for review of the Acting Re-
gional Director's decision
By telegraphic order dated January 13, 1976, the
National Labor Relations Board granted the requests
for review and postponed the election pending deci-
sion on 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
case with respect to the issues under review and
makes the following findings
The Acting Regional Director, applying criteria set
forth in Kalamazoo Paper Box Corporation, 136
NLRB 134 (1962), as indicated, found the
Employer's long haul truckdrivers could appropriate-
ly be severed by the Petitioner from an established
broader production and maintenance unit I The Em-
ployer and the Intervenor, in their requests for re-
view, contend, inter aha, that he erred in limiting his
consideration to the severance standards delineated
in Kalamazoo, and they urged that in the light of all
relevant factors, under Mallinckrodt Chemical Works,
Uranium Division, 162 NLRB 387 (1966), severance is
inappropriate herein We agree
The Employer is engaged in the manufacture and
i The Acting Regional Director took note of the contention made by the
Employer and the Intervenor that the Petitioner should be disqualified be
cause of possible racial motives in its reason for being formed and its pres-
ent employee composition, stating that such matters could not be raised at
that stage of the proceeding He added that he would not presuppose that
the Petitioner, if certified, would engage in prohibited racial discrimination
sale of chain wire and fittings at its Columbiana and
Birmingham, Alabama, facilities Its long haul truck-
ing department, which operates from warehouse fa-
cilities in Birmingham, employs approximately 12
long haul truckdrivers to drive vehicles leased from
Wilco Truck Lines The drivers receive their load as-
signments from a dispatcher at the warehouse and
pick up their loads either there or at a staging area at
Wilco's location Upon completion of a haul, they
leave their documents and the vehicles at the ware-
house When picking up their loaded vehicles at the
warehouse, the drivers check to see that the load is
properly secured, but do no loading or unloading
They are under a separate supervisor who reports to
the distribution manager Except for one instance
when a driver whose license was suspended was reas-
signed to plant work, there is no interchange between
drivers and other employees The drivers are paid on
a mileage basis with provision for layover and wait-
ing time pay, they have the same fringe benefits as
other employees
Since 1969, the Employer's truckdrivers have been
represented by the Intervenor as part of a certified
unit described as "all production and maintenance
employees and truckdrivers of the Employer in-
cluding leadmen and shipping and receiving employ-
ees " 2 Earlier, in 1965, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Teamsters, had
been certified as representative of a separate unit of
truckdrivers 3 but was unsuccessful in negotiating an
agreement with the Employer In 1966, the Teamsters
lost an election among the drivers, and was decerti-
fied 4
The Employer and the Intervenor have negotiated
two 3-year contracts covering the certified broad
unit, the second of which expired on September 30,
1975, prior to completion of negotiations for a new
agreement Past contracts have included provisions
relating to the special interests of the truckdrivers in
the long haul trucking department, and individual
truckdrivers have represented those interests on the
Intervenor's negotiating committees Under those
contracts, as indicated, drivers were paid on a mile-
age basis and received payments for layover and/or
waiting time, they were provided the same fringe
benefits as other unit employees Also, those con-
tracts provided for departmental seniority However,
in view of the absence of any black employees in the
long haul trucking department and the predomi-
nance of black employees in other departments, the
Intervenor in its negotiations for a new contract took
2 Case IO-RC-7458
3 Case IO-RC-6401
4Case 10-RM-451
224 NLRB No 42
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the position that a plantwide seniority system should
be provided so that qualified blacks with the greatest
plantwide seniority could bid for truckdriver jobs as
they became available, and the Employer has agreed
to such a provision The Employer asserts that this
agreement was in response to recent court cases find-
ing that parties to collective-bargaining agreements
had perpetuated past discrimination against minority
employees not hired in truckdriver jobs through the
operation of departmental seniority systems 5
Despite the agreement on seniority, disagreements
remained on other issues, and, upon expiration of the
prior contract, the Intervenor initiated a strike in
support of the demands On October 9, 1975, the Pe-
titioner was formed There was testimony that the
truckdrivers had met in May 1975 and decided to
"go independent" but later decided to give the In-
tervenor "a try again", also, that when the Petitioner
was formed the truckdrivers were aware of the agree-
ment to implement plantwide seniority
Upon our review of the entire record, we are not
persuaded that the Employer's long haul truckdrivers
have overriding separate special interests to warrant
their severance from the established broader unit, in
the circumstances and facts of this case
It is true, and we note, that the drivers here in-
volved devote most of their time to over-the-road
driving duties, are under separate immediate supervi-
sion, and do not interchange with employees working
in the warehouse and plant However, in Mallinck-
5 Citing Rodriguez v East Texas Motor Freight, 505 F 2d 40 (C A 5
1974), Herrera v Yellow Freight Systems Inc 505 F 2d 66 (C A 5 1974)
Resendis v Lee Way Motor Freight Inc, 505 F 2d 69 (C A 5 1974) Hair
ston v McLean Trucking Company 520 F 2d 226 (C A 6 1975) US v
Navajo Freight Lines Inc 525 F 2d 1318 (C A 9, 1975)
rodt, the Board set forth a number of other factors
which must be considered in determining whether or
not the history of bargaining precludes severance
We think it is significant that in 1966, after a brief
period of representation by the Teamsters, the
Employer's truckdrivers voted to decertify that
union, thereby rejecting the separate representation
that had theretofore existed Also, until the current
negotiations, there is no suggestion in the record that
the truckdrivers have not heretofore been adequately
represented by the Intervenor as part of a production
and maintenance unit or that the bargaining history
has not been otherwise a satisfactory and stable one
As to the indication of current discontent among the
truckdrivers which apparently led to the Petitioner's
formation and its filing of the instant petition, it is
not entirely clear whether the discontent was brought
about by the agreement to implement plantwide se-
niority, a change which may affect some of them ad-
versely in the future, or by other bargaining positions
taken by the Intervenor Whatever the case, we do
not deem this evidence of current dissatisfaction with
the Intervenor's representation of the truckdrivers to
be sufficient to support the Petitioner's severance re-
quest at this time
Accordingly, we shall dismiss the petition herein 6
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed
61n reaching our conclusion to deny severance herein we need not and
do not pass on the contention of the Employer that the actions of the
truckdrivers leading to the Petitioners formation and the filing of the in
stant petition were racially motivated