Mack Trucks, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1974

209 N.L.R.B. 1003 (N.L.R.B. 1974)

MACK TRUCKS, INC.
Mack Trucks, Inc. and International Union , United
Automobile ., Aerospace & Agricultural Implement
Workers of America (UAW), Petitioner. Case
10-RC-9547
April 2. 1974
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On April 20, 1973, the Regional Director for
Region 10 issued a Decision and Direction of
Election in the above-entitled proceeding in which he
directed an election in the Petitioner's requested unit
of warehouse employees at the Employer's Atlanta,
Georgia, regional warehouse, finding that an existing
contract covering those employees was inoperative as
a bar to an immediate election by reason of a
disclaimer of interest by the incumbent representa-
tive. Thereafter, in accordance with the National
Labor Relations Board Rules and Regulations, as
amended, the Employer filed a timely request for
review of the Regional Director's Decision on the
grounds, inter alia, that in giving effect to the
incumbent labor organization's disclaimer of interest
in the contract unit he departed from established
policy.
By telegraphic order dated May 30, 1973, the
National Labor Relations Board granted the request
for review and stayed the election pending decision
on review. Thereafter, the Petitioner timely filed a
brief on review.
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 entire record in this
case with respect to the issues under review,
including the Petitioner's brief on review, and makes
the following findings:
The instant petition was filed March 13, 1973. The
Employer interposed as a bar to the petition its
contract with Automobile Mechanics Local No. 35
of District No. 46, International Association of
Machinists and Aerospace Workers (herein called
IAM Local 35), effective December 7, 1972, through
January 25, 1976, covering the employees in the unit
sought by the Petitioner. The Regional Director, in
rejecting the Employer's contract-bar contention,
relied solely on the fact that [AM disclaimed interest
in representing the employees involved, citing Na-
tional By-Products Company, 122 NLRB 334; and
WTOP, Inc., 114 NLRB 1236. The Employer, in its
request for review, argues that the precedents cited
by the Regional Director are factually distinguisha-
209 NLRB No. 164
1003
ble, and that his acceptance of a disclaimer herein
was a departure from the Board's policy of refusing
to permit parties to collective-bargaining agreements
to escape their terms through the use of Board
processes. We find merit in the Employer's argu-
ment.
The Employer is engaged in the manufacture, sale,
and service of Mack trucks and truck parts. It has a
nationwide master agreement with the UAW which
covers the Employer's manufacturing plants at
Cortland, New York; Bridgewater, New Jersey;
Allentown, Pennsylvania; Hagerstown, Maryland;
and Hayward, California. The Employer also has a
contract with IAM Local 35 covering employees at
its Atlanta, Georgia, branch. For many years, until
1973, the Atlanta branch was engaged in the sale and
service of Mack trucks and maintained a parts
department, referred to in the record as a "sub-
depot." The parts department provided parts for
over-the-counter customers and for mechanics in the
adjoining garage facility, and it shipped parts to
other branches and to distributors throughout the
southeastern United States.
Sometime during the summer of 1972, the Employ-
er's increasing business caused it to decide to
establish a regional parts warehouse at a separate
location in Atlanta for the purpose of servicing all its
branch facilities, as well as distributors and custom-
ers, in its southern region. Shortly thereafter it
notified IAM Local 35 of its plans. On November 27
or 28, 1972, a representative of IAM Local 35
telephoned Anderson, the Employer's director of
industrial relations, in Allentown, Pennsylvania, that
"they had signed cards on employees . . . [and] it
was time to meet on a contract." The conversation
also contained discussions concerning the terms of
the contract. On December 7, Anderson flew to
Atlanta with typed copies of a contract for a term of
3-1/4 years, which on that date the IAM Local 35
representatives and Wilson, the manager of the new
warehouse, executed. At that time, the warehouse
employed seven warehousemen, an office clerical
employee, three supervisors, plus the warehouse
manager. The warehouse had not yet become
operational, and the warehousemen were engaged in
setting up shop.
On December 8, the Employer received a letter
postdated December 6 from the UAW advising that
a majority of the warehouse employees had signed
cards designating it as their representative, offering
to prove its majority status, and demanding recogni-
tion. The same day the warehouse manager wrote the
UAW stating that the Employer declined recognition
because of its contract with IAM Local 35.
The record reveals, in conjunction with ensuing
events detailed below, that IAM Local 35 has taken
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no steps to administer the contract, and that no shop
steward has been appointed and no dues have been
checked off despite contractual provisions therefor.
By letter dated February 19, 1973, the UAW made
a second demand. The letter recites that: (1) The
recognition of IAM Local 35 violates the master
contract between the Employer and UAW, and in
particular the provisions concerning recognition and
transfer and relocation;' (2) UAW has at all times
represented a majority of the employees, both before
and after the recognition of IAM; (3) On February
14, IAM representatives agreed that UAW represents
a majority and should be recognized; and (4)
"Furthermore it was agreed under our point UAW-
JAM jurisdictional pact and under the contractual
circumstances and relationship involved that UAW
should be the appropriate bargaining agent." The
letter recites that copies were being sent to two IAM
officials.
By letter dated March 14 the Employer answered
UAW's February 19 letter. It contended that its
Master Shop Agreement with the UAW was not
violated; that inasmuch as IAM Local 35 demon-
strated its majority and negotiated a contract before
the Employer knew of the UAW claim, recognition
was required by law; and that the contract with IAM
Local 35 is a binding agreement. It added that it is
not bound by or familiar with the terms of a
jurisdictional pact between the UAW and the IAM.
On March 27, the Regional Director issued a
notice of hearing in the instant proceeding. By letter
dated March 29, Louis Poulton, IAM associate
general counsel, informed the Regional Director that
"the International . . . does not seek to represent the
employees. . . ." A second letter dated April 2 was
sent by Poulton to the Regional Director, with copies
to the parties, stating that "our District Lodge 46 as
well as our local lodges affiliated with the district
have no interest in representing the employees...."
i The recognition clauses of the Master Shop Agreement provide that if
UAW is certified in additional manufacturing units, "those units shall be
included in this Master Agreement " If UAW is certified or recognized
in some other unit , the parties "shall determine by negotiations whether
such unit should be placed under this Master Agreement.
The transfer agreement provides that "[ t]ransfers of work from a plant
covered by the Master Shop Agreement to a new plant shall
be governed by the following provisions [Certain e]mployees directly or
indirectly affected by such transfer . shall have the right to transfer
directly to the job on the transferred work An employee who is
transferred will promptly be paid a relocation allowance . .
2 The case of WTOP, supra, cited by the Regional Director is inapposite
as there the union which had executed the contract covering the employees
in question was found to be defunct.
3 In National By-Products, 2 of the 12 drivers petitioned for as an
appropriate unit were represented by the intervenor under its contract
covering employees at the employer's processing plants, and the Board gave
effect to the intervenor 's disclaimer of interest in continuing to represent
these 2 drivers because , in the circumstances, changes in the employer's
operations made them no longer appropriately a part of the contract unit In
Manitowoc Shipbuilding, Inc, 191 NLRB 786, relied on by the Petitioner,
similar considerations formed the basis for acceptance of an intervening
No appearance was made at the hearing on behalf of
IAM Local 35. At the time of the hearing, April 6,
the warehouse employed 22 warehousemen, 8 office
employees, 6 supervisors, and the warehouse manag-
er.
It is clear from the foregoing that IAM Local 35,
which executed the contract advanced by the
Employer as a bar to an immediate election, has not
become defunct. Nor do we see any warrant herein
for giving effect to the disclaimer asserted on its
behalf that it has no further interest in representing
the employees sought who are covered by its
contract. The Petitioner concedes that it would be
contrary to the principles of the Act for a union to
disclaim its interest in a contract for the purpose of
avoiding its terms, but it argues that such is not the
case herein. Yet it offers no assurance that it would
adhere to and administer the terms of the existing
contract if we were to hold the requested election
and it were certified as bargaining representative.
Moreover, there are no considerations present in the
instant case, such as there were in National By-
Products cited by the Regional Director2 or in other
cases relied on by the Petitioner, which might justify
acceptance of the disclaimer of interest made in
behalf of IAM Local 35.3 The fact that IAM Local
35 has not been representing the employees involved,
and does not appear to be willing at present to
represent them, is evidently a consequence of an
agreement reached between the Petitioner and the
IAM after the execution of the contract. However,
although the Board has a policy of seeking, in its
representation proceedings, to accommodate efforts
being made to resolve disputes between unions under
"no-raiding" agreements,4 it does not permit such
agreements to be used to supersede a binding
collective-bargaining agreement interposed as a bar
to an immediate election.5 In the circumstances, as
the contract covering the requested unit of ware-
union's disclaimer as to certain crane operators covered by its contract with
the employer
Nor is the increase in the size of the unit complement, from 7
warehousemen at the time the contract was executed to 22 at the time of the
hearing, of sufficient magnitude to remove the contract as a bar under the
policy set forth in General Extrusion Company, Inc, 121 NLRB 1165, 1167.
4 See N .L R B Field Manual , sec. 11050.
S The Petitioner ' s reliance on Plough, Inc, 203 NLRB No 50, is
misplaced The basis for the Board 's direction of an immediate election
there was the fact that the employer filed the petition and did not raise as a
bar its contract with one of the union claimants covering the employees in
the alleged unit, and not, as suggested by the Petitioner , the fact that the
contracting union disclaimed interest as a result of AFL-CIO no-raiding
procedures.
It is noted that our dissenting colleague relies on the statement in that
case that the disclaimer of one of the claiming unions removed its contract
as a bar to the employer 's petition . However , as indicated , no contract-bar
issue had been raised in that case , so that the finding there that the contract
was removed as a bar was obiter dictum and is not controlling herein
Furthermore , the sentence in the Plough opinion to which our dissenting
colleague refers cited the Manitowoc and National By-Products cases as
support for this dictum On closer examination , as indicated in in 3, supra,
MACK TRUCKS, INC.
housemen does not expire until January 1976, we
find that it operates as a bar to an election in this
proceeding. Accordingly, we shall dismiss the instant
petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
MEMBER FANNING, dissenting:
Unlike my colleagues, I would find no contract bar
here and would, like the Regional Director, conduct
an immediate election.
The Board's Field Manual, which is available to
the public as a description of Board policies, states at
section 11120:
If a union with an outstanding certification or
with a still-effective contract covering all, or some
of the employees involved in an RC case seeks to
avoid participation in the instant case-i.e.,
disclaims any present interest in the affected
employees-it does so by filing a disclaimer of
interest.
At section 11122 the effect of a disclaimer in any RC
case is described as follows:
a disclaimer must not be accompanied by
action which is inconsistent therewith, such as
simultaneously striking or picketing for recogni-
tion, or seeking to press grievances. If the
those cases simply do not stand for so dogmatic a proposition Nor do we
believe that this Board should so apply it here for the reasons expressed in
the text of this majority opinion.
As to the provisions of the Field Manual cited by our dissenting
1005
disclaimer is in writing , and there is no inconsis-
tent action, the union may thereafter be disre-
garded as a party.
I am reluctant to assume that this does not mean
what it says. Therefore, since IAM has disclaimed
and has taken no inconsistent action, there is no
reason not to proceed to an election here.
In support of this position, the Petitioner relies on
Plough, Inc., 203 NLRB No. 50. My colleagues say
that that reliance is misplaced because the basis of
decision in Plough was that the petition was an RM
petition and the employer did not assert the contract
as a bar. The Petitioner argues that in Plough the
Board gave weight to the contracting union's
disclaimer. That argument rests not on inference
from possibly ambiguous language, but on the flat
statement in the Board's opinion that "(the union's)
disclaimer removes its contract with Plough as a bar
to this proceeding."
Nor is there any broader reason of policy to give
any weight to this contract. The purpose of the Act is
to further the practice of collective bargaining. That
purpose is not served by attempting to tie these
employees to a union that has made perfectly clear
its lack of interest in representing them and leaving
them in fact with no representative at all until the
end of 1975 at the earliest.
I would affirm the Regional Director and direct an
immediate election.
colleague, it is plain that they are intended to spell out the procedure for
disclaiming , and are surely not to be deemed controlling or even relevant to
the substantive question posed herein for our determination