Matlack, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1971

193 N.L.R.B. 287 (N.L.R.B. 1971)

BAGGETT BULK TRANSPORT, INC. 287
Baggett Bulk Transport , Inc., a wholly owned subsidi-
ary of Matlack, Inc.' and Southern Conference of
Teamsters and its affiliated Local Unions , Petition-
er. Case l0-RC-8550
September 21, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer H. Carlton Bryan, Jr.
Thereafter, pursuant to Section 102.67 of National
Labor Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended, and
by direction of the Regional Director for Region 10,
this case was transferred to the National Labor
Relations Board for decision. Thereafter, the Petition-
er and the Intervenor2 filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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.
Upon the entire record in this case the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner and Intervenor are labor organi-
zations within the meaning of the Act.
3. The Petitioner has filed a petition seeking an
election in a unit of over-the-road drivers, loaders,
i The name of the Employer appears in the caption as stated in the
record
2 International Union of District 50, Allied and Technical Workers of
the United States and Canada, on behalf of its Local 14502
3 By motion filed with the Board on August 17, 1971, Petitioner
requested permission to withdraw its petition it asserted as its reason
therefor that because of the Employer's refusal to recognize either of the
competing unions during the pendancy of this proceeding and the Board's
delay in processing this case, the employees engaged in a series of wildcat
strikes leading to certain counteraction by the Employer in the form of
striker discharges , thereby creating a situation which makes it "not possible
to tell on the present record who shall be entitled to vote, who are present
employees , or to otherwise conduct a fair election at this time." The
Employer filed a letter stating it had "no objection" to the requested
withdrawal Intervenor , however, opposed the request For the reasons
hereafter indicated we find merit in Intervenor's opposition It is clear that
Petitioner instituted this proceeding at a time when , pursuant to a
bargaining contract with the Intervenor, the Employer was recognizing the
Intervenor as the representative of employees described in the petition and
that Petitioner wished the Board to declare that contract invalid and no bar
to its representation claims it also appears that in now requesting the
withdrawal of this petition, Petitioner has not disclaimed its interest in
and local drivers in the Employer's Baggett Bulk
Division, including owner-operators, but excluding
maintenance employees.3 The Intervenor contends
that an existing collective-bargaining contract with
the Employer is a bar to such an election.4 The
Employer is neutral.5
For a number of years before 1969, Baggett
Transportation Company, herein called Baggett
Transportation, was engaged as a common carrier in
transporting goods and bulk materials in local and
interstate commerce. Its bulk operations were carried
on through a wholly owned corporate subsidiary,
Baggett Bulk Transport, Inc., herein called Baggett
Bulk.
Intervenor has been recognized by Baggett Trans-
portation as the bargaining representative of its
employees for many years. This recognition included
the employees of Baggett Bulk so long as the latter
remained a subdivision of Baggett Transportation. On
April 10, 1969, Baggett Transportation sold its
Baggett Bulk business to Matlack, Inc. However,
because the approval of regulatory authorities was
necessary for the sale to become effective and this
approval was delayed, Matlack was not able to take
over and operate the Baggett Bulk business until April
15, 1970. Meanwhile, as Baggett Transportation's
collective-bargaining contract with the Intervenor
was expiring, the two parties executed a new agree-
ment effective from May 16, 1969, to May 16, 1972.
This contract covered all Baggett Transportation
employees, including those of Baggett Bulk. On April
29, 1970, after Matlack had begun operating the
former Baggett Bulk subsidiary, Matlack and the
Intervenor signed an agreement whereby Matlack
agreed to be bound by the Intervenor's 1969 contract
with Baggett Transportation, with respect to the
Baggett Bulk employees .6 For its other driver employ-
ees, Matlack bargained with the Teamsters. However,
this collective-bargaining agreement with the Team-
representing the employees In these circumstances , we find, in accord with
the position of the Intervenor , that it would not effectuate the policies of
the Act to grant the Petitioner 's requested withdrawal of its petition.
Rather, we believe that the disturbing situation described by the Petitioner
evidences a need for the Board's prompt determination of the basic issues
litigated in this case We therefore deny Petitioner's request for the
withdrawal of its petition
4 Intervenor agrees with the composition of the Petitioner 's proposed
unit in the event an election is directed The Employer, however, would
exclude owner-operators as independent contractors and would have
maintenance employees combined in a single unit with the requested
drivers and loaders. For reasons set out infra, we find it unnecessary to
reach or to determine the employee status of the owner-operators, or to
pass upon the Employer's contention with respect to the unit placement of
maintenance employees
5 During the early stages of the hearing the Employer agreed with the
Intervenor's contract-bar contention . However , on the last day of the
hearing, the Employer changed its position to one of neutrality and
requested an election
6 Petitioner questions the bona fides of this assumption agreement We
find the Petitioner 's evidence offered in support thereof insufficient to
justify rejecting it as spurious or invalid
193 NLRB No. 40
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sters specifically provided that it was not applicable to
those operations of Matlack covered by a collective-
bargaining contract with another labor organization.
The Intervenor contends that its 1969 collective-
bargaining contract with Baggett Transportation is
applicable to the Baggett Bulk employees and is a bar
to this proceeding by virtue of Burns International
Detective Agency, Inc., 182 NLRB No. 50, enforce-
ment denied in relevant part 441 F.2d 911 (C.A. 2),
and the assumption agreement.? Petitioner argues
that the expanding unit doctrine precludes the
application of contract-bar principles."
We find no merit in Petitioner's argument. In view
of the assumption agreement, we find it unnecessary
to consider the application of Burns International
Detective Agency, Inc., to the facts of this case. The
assumption agreement is in fact a new contract
running from the date of execution, April 29, 1970, to
May 16, 1972.9 The petition was not filed until
December 14, 1970, almost 10 months after the
execution of the assumption agreement. Accordingly,
the assumption agreement would serve to bar the
petition unless Petitioner's expanding unit contention
is sustained.10
At the time of the hearing in this case, Baggett Bulk
had 87 driver and loader employees and 2 lease
operators, whose status as employees is in dispute.
For the week ending May 1, 1970, the week of the
7 The Stubmtz Greene Spring Corp, 113 NLRB 226
B General Extrusion Company, Inc, 121 NLRB 1165
9 The Stubmtz Greene Spring Corp, supra
io In General Extrusion, the Board declared (121 NLRB at 1167)
When the question of a substantial increase in personnel is in issue, a
contract will bar an election only if at least 30 percent of the
complement employed at the time of the hearing had been employed
at the time the contract was executed , and 50 percent of the job
classifications in existence at the time of the hearing were in existence
at the time the contract was executed
ii Although the Employer would have had the Board combine
maintenance employees with the drivers and loaders in a single unit if an
election were directed , it did not and does not claim that a unit confined to
signing of the assumption agreement, Baggett Bulk
had 26 driver and loader employees, and 38 lease
operators. Assuming that the lease operators are
employees, as contended by the two unions, then at
the time of the assumption agreement the unit had 72
percent of the employees employed at the time of the
hearing, far more than enough to satisfy the General
Extrusion 30-percent standard. If lease operators are
excluded from the count on both dates, then the
proportion of employees on the assumption date to
those on the date of the hearing was .2988 or 30
percent reducing the above figure to two decimals by
conventional arithmetic, also sufficient to meet the
General Extrusion standard.ii
Accordingly, we find that, inasmuch as Baggett
Bulk had a representative number of employees at the
time Matlack and the Intervenor executed their
assumption agreement, this agreement is a bar to the
present proceeding. We further find that no question
concerning representation exists within the meaning
of Sections 9(c)(1) and 2(6) and (7) of the Act. We
shall therefore dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein be,
and it hereby is, dismissed.
the drivers and loaders covered by Intervenor 's contract is an inappropriate
unit Nor does Petitioner assert any such claim Indeed , it appears that the
maintenance employees described by the Employer became part of the
Employer's work force in late 1970 or early 1971 as a result of the
Employer's acquisition of another company, that they were unrepresented
at that time , that Intervenor subsequently acquired authorization cards
from a majority of them, and that, on the basis of such cards, the
Employer agreed to recognize the Intervenor as their representative and
entered into memorandum agreements dated February 3 and March 12,
1971, with respect to them In these circumstances, and as Petitioner's
representation claim does not extend to the maintenance employees, we
find that there is no question concerning their representation