National Carloading Corp.

National Labor Relations Board - Board Decisions

Oct 16, 1967

167 N.L.R.B. 801 (N.L.R.B. 1967)

NATIONAL CARLOADING CORP. 801
National Carloading Corp . I and Pacific & Atlantic
Shippers , Inc.2 and Meat and Highway Drivers,
Dockmen , Helpers and Miscellaneous Truck Ter-
minal Employees, Local Union No . 710,1 . B. of T.,3
Petitioner . Case 13-RC-10990
October 16, 1967
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, BROWN , JENKINS, AND
ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Allen P.
Haas. Thereafter , briefs were filed by the Inter-
venor (BRC)' and the Employer.
The National Labor Relations 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.5
Upon the entire record in this case , the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. The instant petition is an outgrowth of the
same consolidation by National and P & A of their
formerly separate Chicago freight forwarding ter-
minals as was involved in Panda Terminals, Inc.6
While the Board in Panda directed an election
among dockworkers at the newly consolidated
facility (47th Street terminal)' to resolve conflicting
claims for representation by Local 710 and BRC as
to that group , the present case involves clerical em-
ployees employed at that location. Thus, the Peti-
tioner seeks an election in two units, as follows: (1)
all clerical employees employed by National and P
& A, and (2) all clerical employees employed by
Judson Sheldon International.8
BRC contends that no question concerning
representation exists because ( 1) the P & A andJS!
clericals who were transferred to the 47th Street of-
fice as a result of the consolidation have accreted to
its existing unit of National employees at that loca-
tion, and (2) its current contract with National,
covering these employees, was executed on Oc-
tober 31, 1966,9 and, therefore, bars the amended
petition which was not filed until January 4, 1967.
In that connection, BRC avers that the amended
petition substantially revised the Petitioner's
original unit position. BRC further argues that, in
any event, the,units sought by the amended petition
are inappropriate. The Employer, on the other
hand, has no objection to elections in separate units,
asserting only that a question concerning represen-
tation exists which must be resolved by the Board.
The Employer claims that its ability to function effi-
ciently has been rendered extremely difficult, if not
impossible, by the conflicting claims of the rival
unions and their inability to agree upon an ap-
propriate bargaining unit; and, by a District Court
order, under Section 301 of the Act,10 pursuant to
which the Employer has continued to apply the
BRC contract to National employees, and the
Local 710 contracts to P & A and JSI employees,
despite their employment at the same location and
performance in most cases of identical duties. For
the reasons discussed below, we find no merit in
BRC's contention that the change in the Em-
ployer's operations herein resulted in an accretion.
In this connection, the facts, as fully detailed in
Panda, supra, show that National, P & A, and JSI
are wholly owned subsidiaries of Pacific Inter-
mountain Express Co.," a motor freight carrier
operating pursuant to authority of the Interstate
Commerce Commission. 12 National and P & A,
collectively called the Employer, are separate
freight forwarding companies whose assets were
purchased by PIE in 1962 and 1957, respectively.
Thereafter, in 1962, National and P & A decided to
consolidate their freight handling activities in all ci-
ties, including Chicago, where they had separate
terminals . The consolidation in Chicago became ef-
fective on August 1, 1965.
Prior to that consolidation, the 47th Street facility
was used exclusively by National.13 There, Na-
tional employed approximately 60 to 65 clerical em-
ployees who performed the office work in connec-
tion with the movement of National's freight
through Chicago. These clericals have long been
Herein called National
z Herein called P & A
Herein called Local 710
Brotherhood of Railway and Steamship Clerks, Freight Handlers, Ex-
press and Station Employees , AFL-CIO (herein called BRC was per-
mitted to intervene in this proceeding on the basis of its current contract
covering certain employees of National
5 BRC 's motions to dismiss the petition have been referred by the Hear-
ing Officer to the Board for ruling For the reasons set forth in the text
below , the motions to dismiss are hereby denied
b161NLRB 1215
Located at 3750 West 47th Street , Chicago , Illinois
Herein called JSI
Effective from November 1, 1966, through October 31, 1969
10 Although this proceeding was primarily concerned with the i dock-
workers' status at the combined terminal, it also affected the clerical em-
ployees working for National As explained in the Panda case, these clen-
cals shared certain reciprocal contract rights and obligations vis-a-vis the
employees' handling National's freight at the 47th Street dock
1 Herein called PIE
2 Herein called ICC
As set forth in Panda, supra, before consolidation, National's freight
handling work at the 47th Street dock was performed by employees of the
Santa Fe Railroad, pursuant to a tariff agreement between National and
Santa Fe And, although working exclusively on National's freight, the
Santa Fe dockworkers bargained collectively through BRC with Santa
Fe
167 NLRB No. 116
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by BRC in bargaining with National. In
1964 BRC was certified as the exclusive bargaining
agent in a nationwide unit of all dock and clerical
workers employed by National," and the current
BRC-National contract in the certified unit, which
covers National's clerical employees in Chicago, is
effective from November 1, 1966, through October
31,1969. 15
Also before the consolidation, P & A's Chicago
operation was conducted at 357 Halsted Street,
herein called Halsted Street terminal, where it had
approximately 18 clerical workers.', In addition,
JSI, a customshouse broker and ocean freight for-
warder, also had its office at Halsted Street, em-
ploying about six to eight clericals at that location.
The P & A and JSI clericals are represented by
Local 710 and are covered in separate, albeit
identical," current contracts with their respective
employer.
Upon consolidation which, as stated, became ef-
fective on August 1, 1965, the clerical employees
of P & A and JSI were transferred into National's
office at 47th Street.18 Since that time, therefore, all
of the clerical employees of National, P & A, and
JSI have been working in a single office, with only
a partition separating the JSI employees from the
National and P & A clericals. 19 And, although they
remain on separate employer payrolls, the National
and P & A clerical employees use the same equip-
ment, are supervised by the same supervisors, pos-
sess the same skills, and perform all clerical func-
tions in connection with the Employer's con-
solidated freight forwarding activities in common as
the work demands require. The parties thus stipu-
lated that the Employer's clerical work since the
consolidation has been and is being performed by
the employees of National and P & A on a totally
commingled and fully integrated basis. The parties
also agreed that, although National's and P & A's
clerical employees have somewhat different job
classifications, because of their different bargaining
histories, their duties are identical. The parties
further stipulated that all grievance proceedings
beyond the first step (which involves the immediate
supervisor) are handled uniformly by the PIE In-
dustrial Relations Department, regardless of which
PIE subsidiary is involved.
It is clear from the record, and the parties con-
cede, that all of the clerical work performed at the
consolidated terminal office is the same as that
previously handled at the Employer's separate ter-
minals, except that, with respect to National and P
& A, the work is now performed by employees of
both entities on a commingled basis.
We find no merit in BRC's contention that the
consolidation and transfer resulted in an accretion.
The Board has already found, in Panda, that with
respect to the Employer's freight handling function,
the consolidation resulted in a totally new operation
at the 47th Street terminal. In that case, as here, the
facts established and the Board recognized that the
clerical function is as integral a part of the Em-
ployer's total freight forwarding operation as is the
freight handling function. Nevertheless, the Board
concluded in Panda, that the clerical employees at
47th Street did not properly belong in the same bar-
gaining unit as the dockworkers. To find, therefore,
as urged by BRC, that the transferred clerical em-
ployees have accreted to the bargaining unit
represented by it, i.e., the nationwide mixed unit,
composed of dock and clerical workers in which
BRC was certified, would be contrary to that deci-
sion. Also important is the fact that we are here
confronted with legitimate management action
merging categories of employees historically
represented by different labor organizations into a
single operation in which these employees will work
side by side, in similar job classifications and per-
forming like functions. It is also plain that neither
group of affected employees is sufficiently predomi-
nant to remove any real question as to the overall
choice of a representative.20 In these circum-
stances, statutory policies will not be effectuated if,
through application of ordinary principles of accre-
tion, a bargaining agent is imposed on either seg-
ment of the newly integrated operation. Rather, it
is our opinion that influences disruptive to industri-
al peace and a harmonious bargaining relationship
will be eliminated only if the conflicting representa-
tion claims are resolved through the processes of a
Board-conducted election.
We find and conclude, therefore, that the con-
solidation of the Employer's clerical function did
not result in an accretion barring the existence of a
19 National Carloading Corporation, 20-RC-5616 (not published in
NLRB volumes ) The Board 's unit determination expressly excluded the
dockworkers performing National 's freight handling function at the 47th
Street terminal , finding these dockworkers were employees of Santa Fe
rather than of National
15 This agreement succeeded the one which was in effect at the time of
the consolidation and which , by its terms , expired on October 31, 1966
16 The freight handling function in connection with P & A 's Halsted
Street operation was performed by employees of Panda Terminals, Inc ,
pursuant to a tariff agreement between Panda and P & A
11 P & A's contract with Local 710 became effective on February 1,
1964, while JSI's agreement did not come into effect until December 7,
1967 Both contracts, however, provided the same, March 31, 1967, ex-
piration date
11 The record in the Panda case , supra , indicated that certain clerical
employees of B C Forwarding , another subsidiary of PIE , who worked
at Halsted Street at the time of consolidation , were also transferred to the
47th Street office The record in the instant proceeding, however, is silent
with respect to such employees
18 Although JSI clericals perform somewhat different functions than
their counterparts employed by National and P & A, these differences are
not material for purposes of this discussion For, as more fully discussed
below , in 1964 , the JSI clericals, then sharing the Halsted Street office
with P & A clericals, were found to constitute an accretion to the P & A
clerical unit at that location
20 At the time of the hearing herein, National had 34 clerical employees,
P & A had 12, and JSI had 8 such clericals working at the 47th Street of-
fice. This includes the four National clericals in the unit represented by
BRC, who work in an office at 38th Street
NATIONAL CARLOADING CORP.
question concerning representation as to all clerical
employees engaged at the 47th Street terminal.
Nor do we find merit in BRC's contention that its
current contract covering National's clerical em-
ployees constitutes a bar to an election at this time.
BRC argues that the amended petition, filed on
January 4, 1967, reflects a substantial change in the
Petitioner's unit position and, therefore, was un-
timely in view of the new contract executed be-
tween National BRC on October 31, 1966.21 It is
undisputed, however, that the original petition was
timely filed on August 31, 1966, within the open
period under the then existing National-BRC con-
tract. There, the Petitioner defined the appropriate
unit as including all clerical employees of National,
P & A, and JSI at the 47th Street office. The
amended petition seeks to represent the same em-
ployees, albeit in separate units, as the original peti-
tion. Accordingly, we find that the amendment,
although filed after execution of BRC's new agree-
ment with National, does not represent such a sub-
stantial departure from the original petition as
would warrant dismissal thereof on the ground of
untimeliness. 22
BRC also moved that the instant petition be
dismissed because (1) Local 710, during the
hearings in the Panda case, disclaimed interest in
representing the clerical employees at 47th Street;
and (2) there are unresolved unfair labor practice
charges, alleging violations of Section 8(a)(5) and
(2), pending against the Employer. We find no merit
in either of these contentions.
With respect to the disclaimer, the counsel for
Local 710 admittedly erred in stating the Local's
position during the Panda hearings and thereafter,
by motion to reopen those hearings, sought to recti-
fy the error. The Board, however, having found that
the clerical employees did not properly belong in
the unit with the dockworkers, found it unnecessary
to reopen the Panda record for the purpose of tak-
ing testimony concerning the clerical employees.23
And, as the instant petition was thereafter timely
filed before a new contract covering the clerical em-
ployees was executed, no prejudice resulted from
the asserted erroneous disclaimer. With respect to
BRC's motion based upon unresolved unfair labor
practice charges, that motion hereby is denied for
the same reasons that similar motions were denied
in the Panda case.24
4. As indicated, the Petitioner seeks two units,
described in the petition as follows: (1) All office
clerical employees of National Carloading Corp.
and Pacific & Atlantic Shippers, Inc., excluding all
freight handlers, dockworkers, truckdrivers, and all
21 This bargaining agreement is effective from November 1, 1966,
through October 31, 1969
22 Cf, Kaiser Cement & Gypsum Corp, 158 NLRB 1740, fn 2
23 Panda, supra, fn 35.
24 Id atp 11-12
803
other employees; and (2) all office clerical em-
ployees of Judson Sheldon International, excluding
freight handlers, dockworkers, truckdrivers, and all
other employees. In each unit the only location in-
volved is the Employer's facility in Chicago, Il-
linois.
BRC, on the other hand, contends that a separate
unit of JSI employees is not appropriate in view of
the finding, in Judson Sheldon International, 25 that
they had accreted to the P & A clerical unit.
Furthermore, BRC argues that Local 710 is bound
by the representations made by it in the Judson case
on the basis of which that finding was made. Thus,
in Judson, the Office Employees International
Union, Local 28, petitioned for a separate unit of
JSI clerical employees then working in the same
Halsted Street office with P & A workers. Local
710 intervened on the basis of its contract covering
a unit of P & A clericals at that location, asserting
that the JSI clericals were an accretion to that unit.
The Regional Director for Region 13 agreed and,
on September 25, 1964, dismissed the petition on
grounds that the JSI clericals constituted an accre-
tion to the P & A unit. This ruling was not appealed.
We agree with BRC's position. For, it is well
established that, absent sufficiently compelling
reasons therefor, the Board will not override a prior
unit determination. 26 The record fails to establish
any changes in JSI's operation, or in the relation-
ship between the P & A clerical employees and the
JSI clerical employees, other than the physical
move of both groups to the 47th Street office. Nor,
is it shown that the consolidation and intermingling
of P & A's clerical work with that of National al-
tered the working conditions of the JSI employees
or their relationship with P & A. Therefore, in view
of the prior unit finding based upon representations
advanced by Local 710, and in the absence of com-
pelling circumstances which would require a dif-
ferent determination, we find that the JSI em-
ployees do not constitute a separate appropriate
unit herein. And, as the clericals of National and P
& A are now engaged in a single integrated opera-
tion, subject to common supervision and the per-
formance of identical job duties, we find that the fol-
lowng overall unit is appropriate for purposes of
collective bargaining:
All office clerical employees of National Car-
loading Corp., Pacific & Atlantic Shippers,
Inc., and Judson Sheldon International, ex-
cluding all freight handlers, dockworkers,
truckdrivers, and all other employees.
Neither the Petitioner, nor the Intervenor,
requested an election in the unit herein found ap-
propriate. The appropriate unit is, however, the
25 13-RC-10261 (not published in NLRB volumes)
26 Genesco , Inc, 129 NLRB 1334; Moore-McCormack Lines, Inc,
139 NLRB 796, 799; cf, Bowman Transportation , Inc, 142 NLRB
1093, 1095
310-541 0 - 70 - 52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same as that originally requested by the Petitioner petition upon notice , in writing , to the Regional
and which it supported by an adequate showing of Director for Region 13 within 5 days from the date
interest . In the event , however , that the Petitioner of this Decision.
does not wish to participate in an election in the unit [Direction of Election27 omitted from publica-
found appropriate , we shall permit it to withdraw its tion.]
27 An election eligibility list, containing the names and addresses of all granted by the Regional Director except in extraordinary circumstances.
the eligible voters , must be filed by the Employer with the Regional Failure to comply with this requirement shall be grounds for setting aside
Director for Region 13 , within 7 days after the date of this Decision and the election whenever proper objections are filed Excelsior Underwear
Direction of Election The Regional Director shall make the list available Inc , 156 NLRB 1236
to all parties to the election No extension of time to file this list shall be