Newspaper and Mail Deliveries Union of New York (Jalt Corp. d/b/a U.N.D.S.)

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1102 (N.L.R.B. 2002)

1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Newspaper and Mail Deliverers’ Union of New York
and Vicinity (Jalt Corporation d/b/a U.N.D.S.)
and Leslie F. Kilian. Case 3–CB–7687
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS COWEN
AND BARTLETT
On April 27, 2001, Administrative Law Judge Bruce
D. Rosenstein issued the attached decision. The Respon­
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
1 In finding that the Employer’s Albany, New York facility was a
separate appropriate unit, and that its employees were not an accretion
to the preexisting bargaining unit, the judge applied a presumption that
a single-facility unit is appropriate. We need not pass on the applicabil­
ity of the presumption under the circumstances presented here because
(1) the Respondent does not contest the judge’s use of the presumption
in this case; and (2) even without the benefit of the presumption, we
find, on the basis of the traditional community of interest factors, that
the Albany employees constitute a separate appropriate unit. We also
find that the Albany employees do not satisfy the Board’s test for accre­
tion for the additional reason that they do not share a sufficient com­
munity of interest with the preexisting unit. See, e.g., Giant Eagle
Markets Co ., 308 NLRB 206 (1992); Safeway Stores, 256 NLRB 918
(1981).
2 The judge recommended ordering the Respondent to reimburse the
Albany employees “jointly and severally with U.N.D.S.” (the Em­
ployer) for union fees and dues withheld from or paid by the employ­
ees. In settling a separate unfair labor practice charge arising out of the
same events at issue here, U.N.D.S. agreed to reimburse the Albany
employees “jointly and severally” with the Respondent for fees and
dues paid by or withheld from the employees. Because of the settle­
ment, the complaint in this case does not allege any violations by
U.N.D.S. Thus, we lack jurisdiction over U.N.D.S. for the purpose of
issuing a remedial order against it. Innovative Communications Corp.,
333 NLRB 665 fn. 5 (2001). Therefore, instead of ordering the Re­
spondent to reimburse the employees “jointly and severally with
U.N.D.S.,” we shall order the Respondent to make whole the Albany
employees with interest “for all initiation fees, dues, and other moneys,
if any, paid by or withheld from them.” See generally Radio Officers’
Union of Commercial Telegraphers Union v. NLRB, 347 U.S. 17, 52–
55 (1954).
At the hearing, a representative of U.N.D.S. testified that pursuant to
the settlement, U.N.D.S. has already reimbursed a portion of the mon­
eys paid by or withheld from the Albany employees. We leave to the
compliance stage of this proceeding the determinations of (1) the
amounts of any payments made by U.N.D.S. pursuant to the settlement,
(2) the drivers to whom those payments were made, and (3) the effects
of any amounts received from the settlement on the drivers’ remedial
awards in this case. See generally Weldun International, 321 NLRB
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, Newspaper and Mail Deliverers’ Union of
New York and Vicinity, Long Island City, New York, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening employees with discharge if they re-
fuse to join or support Newspaper and Mail Deliverers’
Union of New York and Vicinity.
(b) Acting as the exclusive collective-bargaining rep­
resentative of the Albany, New York facility employees
unless and until the labor organization is certified by the
National Labor Relations Board as the exclusive collec­
tive-bargaining representative of such employees.
(c) Giving effect to or attempting to enforce any col­
lective-bargaining agreement with U.N.D.S. with respect
to the Albany, New York employees.
(d) Accepting dues or fees that have been deducted
from the wages of employees of the Albany, New York
facility.
(e) In any like or related manner restraining or coerc­
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole all drivers at the Albany, New York
facility with interest for all initiation fees, dues, and other
moneys, if any, paid by or withheld from them, in the
manner set forth in the remedy section of the judge’s
decision, as modified herein.
(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of reimbursement
due under the terms of this Order.
(c) Within 14 days after service by the Region, post at
its union office in Long Island City, New York, copies of
733, 734 fn. 6, and 737–738 (1996), enfd. in relevant part 165 F.3d 28
(6th Cir. 1998) (Board ordered backpay and reinstatement to remedy
8(a)(3) violations; left to compliance the issue of the effect on backpay
awards of amounts received pursuant to settlement).
We shall further modify the judge’s recommended Order to conform
to his findings and to the Board’s standard remedial language. In addi­
tion, we shall substitute a new notice to conform to our recent decision
in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
337 NLRB No. 172
NEWSPAPER & MAIL DELIVERS OF N.Y. (U.N.D.S.) 1103
the attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent’s author­
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al­
tered, defaced, or covered by any other material.
(d) Within 14 days after service by the Region, for-
ward a sufficient number of signed copies of the notice to
the Regional Director for posting at the Albany, New
York facility by U.N.D.S., if willing, in places where
notices to employees are customarily posted.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply with this Order.
APPENDIX
NOTICE TO MEMBERS

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten employees with discharge if
they refuse to join or support Newspaper and Mail De­
liverers’ Union of New York and Vicinity.
WE WILL NOT bargain with U.N.D.S. as the collective-
bargaining representative for the drivers at the Albany,
New York facility unless we have been certified by the
National Labor Relations Board as the exclusive collec­
tive-bargaining representative of such employees.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT give effect to or attempt to enforce our
collective-bargaining agreement with U.N.D.S. with re­
spect to the drivers at the Albany, New York facility.
WE WILL NOT accept dues or fees that have been de­
ducted from the wages of employees of the Albany, New
York facility.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL make whole, with interest, all drivers em­
ployed at the Albany, New York facility for all initiation
fees, dues and other moneys, if any, paid by or withheld
from them.
NEWSPAPER AND MAIL DELIVERERS’ UNION OF
NEW YORK AND VICINITY
Alfred M. Norek, Esq., for the General Counsel.

J. Warren Mangan, Esq., of Long Island City, New York, for

the Respondent Union.
Thomas Baio, of Edison, New Jersey, for U.N.D.S.
DECISION
STATEMENT OF THE CASE
BRUCE D . ROSENSTEIN, Administrative Law Judge. This
case was tried before me on January 10 and 11, 2001, in Al­
bany, New York, pursuant to a complaint and notice of hearing
(the complaint) issued by the Regional Director for Region 3 of
the National Labor Relations Board (the Board) on October 17,
2000.1 The complaint, based upon original and amended
charges filed by Leslie F. Kilian (Kilian), alleges that Newspa­
per and Mail Deliverers’ Union of New York and Vicinity (the
Respondent or Union) has engaged in certain violations of Sec­
tion 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act
(the Act). The Respondent filed a timely answer to the com­
plaint denying that it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent threatened em­
ployees with discharge if they did not become members of the
Union and that Respondent obtained recognition and entered
into and since has maintained and enforced a collective-
bargaining agreement with U.N.D.S. even though it did not
represent an uncoerced majority of the Unit. Additionally, the
complaint alleges that the collective-bargaining agreement
provides that all unit employees are required to become mem­
bers of Respondent, and/or to pay an agency fee to Respondent
as a condition of employment even though it was not the law-
fully recognized exclusive collective-bargaining representative
of the Unit.
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow­
ing.
1 All dates are in 2000 unless otherwise indicated.
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
U.N.D.S. is a corporation engaged in the distribution and
transportation of magazines and printed materials, with an of­
fice and place of business located at 175 Talmadge Road, Edi­
son, New Jersey, and various other facilities, including a facil­
ity located at 8 Anderson Drive, in Albany, New York.
U.N.D.S., in conducting its business operations within the State
of New York, derived gross revenues in excess of $50,000 for
the transportation of freight directly to points outside the State
of New York. The Respondent admits, and I find, that
U.N.D.S. is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that it is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In May 1992, the Board conducted a representation election
at U.N.D.S. that covered drivers employed in its Edison, New
Jersey, and Joppa, Maryland locations. The Edison and Joppa
facilities’ were certified by the Board, and when the Joppa fa­
cility closed, the certification was extended to a Winchester,
Virginia facility that was opened in 1994. Respondent and
U.N.D.S. entered into memoranda of agreements dated July 10
and October 20, 1994 that were then superseded by a collec­
tive-bargaining agreement that was in effect from January 1,
1996, to July 9, 1999 (GC Exh. 2). Thereafter, the parties’
extended their agreement from July 10, 1999, to July 9, 2004
(GC Exh. 3).
On December 27, 1996, Joseph Baio, incorporated an entity
known as Jansons Corporation that served as a management
company for a number of entities under his supervision and
control. On February 21, 1996 Joseph Baio formed JB Leasing
Corporation and on February 28, 1997 he formed JB Trucking
Corporation.2 All of these companies are interrelated. In this
regard, Jansons manages JB Trucking Corporation and JB
Leasing Corporation and JB Trucking Corporation owns JB
Leasing Corporation. Joseph Baio, or his two sons, Thomas
and Louis, hold official positions in all of the above corpora­
tions. For example, Joseph Baio is president of Jansons Corpo­
ration, president of U.N.D.S., and chairman of JB Trucking
Corporation.
In 1998 U.N.D.S. serviced customers in the Albany, New
York area, and picked up Time and Newsweek magazines from
Quad Graphics, a printer located in Saratoga Springs, New
York, before delivering the product to various outlets in the
vicinity. During that time period, the bulk of the publication
and delivery magazine business in the Albany-Troy-
Schenectady area was performed by a competitor known as
Troy News Company. On or about February 5, 1999 director
2 JB Leasing Corporation was established to purchase new trucks
and lease them back to Baio. In addition, it manages and performs the
maintenance on all tractors and trailers owned and used by U.N.D.S.
JB Trucking Corporation was established as an independent company
to broker loads of printed materials out of Edison, New Jersey.
of transportation for Troy News Company, Brian Caverly, was
informed by the Company’s bank that Troy News was going to
be closed due to financial problems. The bank gave Caverly
permission to deliver freight that was stored in the terminal and
had been committed for delivery over the weekend of February
5, 1999. For that purpose, Caverly contacted Joseph Baio to
inquire whether his company was interested in making the de-
liveries and if he could use Caverly and some of the drivers that
worked for Troy News Company to complete the work. Baio
was very interested in performing this work and instructed
Caverly to rent trucks, obtain employees to assist him, and
make the deliveries that were scheduled over the weekend.
Baio promised Caverly that he would reimburse him for the
costs associated to rent the trucks and any other expenses in­
curred for the deliveries. After the work was completed,
Caverly apprised Baio that Troy News had a weekly obligation
through Time Inc. to pick up Time magazine from Quad Graph­
ics, and inquired of Baio whether he was interested in acquiring
that work. Baio gave Caverly the authority to make those de-
liveries and Caverly, along with several Troy News drivers,
went to Quad Graphics on the evening of February 7, 1999,
consolidated the products and put them on rented trucks for
delivery to wholesalers the next morning. Additionally, Baio
informed Caverly that effective February 8, 1999 (Monday), he
could commence work for him. The arrangement of using the
rented trucks to pick up the product at Quad Graphics contin­
ued for the next several weeks with Baio reimbursing Caverly
for all costs associated with the deliveries. In early March
1999, JB Trucking Corporation arranged to rent and executed a
lease for a terminal and facility in Albany, New York, with the
intent of taking over the business formerly handled by Troy
News. New trucks were purchased by JB Trucking Corpora­
tion or sent from U.N.D.S. to be used in the business.3 Caverly
was charged with the responsibility of hiring drivers to staff the
facility. For that purpose, Caverly contacted, interviewed, and
hired 7 former drivers from Troy News Company and also
hired a warehouse manager. The employees filled out applica­
tions for Able Leasing, an independent company contracted by
Jansons to employ and manage the payroll operations of its
nonunion employees.
By letter dated March 9, 1999, Respondent informed Tho-
mas Baio that with the opening of the facility in Albany, New
York, it was their position that it came under the Union’s juris­
diction as set forth in the parties’ collective-bargaining agree­
ment (GC Exh. 4). On March 11, 1999, Thomas Baio informed
Respondent that his father made an investment in the Albany
facility and the terminal did not involve nor was it included in
the bargaining unit of U.N.D.S. (GC Exh. 5). By letter dated
March 22, 1999, the Respondent formalized a grievance that
the Albany facility came under the parties’ collective-
bargaining agreement and the matter should be referred to arbi­
tration if the Baio’s persisted in challenging this position (GC
Exh. 7).
Since the matter could not be resolved to the satisfaction of
the parties, an arbitration hearing commenced in October 1999,
3 The Albany facility is approximately 175 miles from Edison, New
Jersey.
NEWSPAPER & MAIL DELIVERS OF N.Y. (U.N.D.S.) 1105
in Edison, New Jersey. After several days of testimony by
U.N.D.S. officials including Joseph and Thomas Baio,
U.N.D.S. determined that it would be in its best interest to settle
the underlying matter. For this purpose, U.N.D.S. agreed that
the employees in the Albany facility would be covered by the
U.N.D.S. collective-bargaining agreement. The parties then
entered negotiations and finalized on March 3, a memorandum
of agreement resolving the dispute pending before the arbitrator
that became effective on March 17, subject to ratification by the
Respondent (GC Exh. 8).4
B. Facts
On March 13, Thomas Baio sent a letter to Albany facility
Manager Caverly that was posted so all drivers could be aware
of changes to their employment (R. Exh. 9).5
On March 17, Thomas Baio drove to the Albany facility
along with union representatives, Robert Sherman and Barry
Bilotti. Thomas Baio called a meeting, attended by five driv­
ers, to apprise them that effective at the end of the day the
Company (AMPS) would no longer be in existence and effec­
tive on March 20, the employees would be required to fill out
new applications to work for U.N.D.S. The drivers either com­
pleted the applications onsite or took them home to fill out.
Thereafter, Caverly forwarded the completed applications to
Edison, New Jersey. Thomas Baio further informed the drivers
that they would have to join the Union and if they refused, they
could be terminated. After addressing the drivers, Thomas
Baio and Caverly left the meeting. Thereafter, Bilotti and
Sherman spoke to the group. They distributed copies of the
parties’ collective-bargaining agreement (GC Exhs. 2 and 3) to
4 The agreement provides in pertinent part that:
1. Drivers at the American Magazine Postal Service (AMPS)
in Albany, New York, shall hereinafter be bargaining unit em­
ployees and covered by the terms and conditions contained in the
parties’ prevailing collective-bargaining agreement.
2. All drivers (currently and in the future) working for the
Employer at the Albany Depot shall be considered to be based at
the Edison Depot and shall be added to the bottom of the Edison
Depot seniority list, as of the effective date of this memorandum.
As between themselves, the position of said Albany Depot drivers
on the Edison Depot seniority list shall be in accordance with
their respective dates of hire by AMPS or the Employer at the Al­
bany Depot.
5 The letter states in pertinent part that:
1. On March 17 AMPS will terminate its contract with Able
Leasing for Albany drivers only. AMPS and U.N.D.S. will be
operationally merging effective on that date. Therefore, all driv­
ers will have to essentially reapply for their positions commenc­
ing on March 17. U.N.D.S. and the Union will now be the hiring
company and respective bargaining agent for all former AMPS
Able drivers. The drivers will fall in line from a seniority stand-
point in the combined U.N.D.S./AMPS merger, but in the order in
which they were originally hired by Able Leasing. All drivers
currently employed by AMPS will be afforded new positions.
The Union representing the drivers in Edison will be serving as
the bargaining agent for all AMPS drivers going forward, and a
copy of the Union agreement will be available for review and dis­
tribution to all drivers.
2. Thomas Baio and Barry Bilotti (shop steward
U.N.D.S./AMPS) will be onsite on Friday, March 17 to answer
questions and help with the transition.
the drivers and explained the requirement for the payment of
agency fees and if employees did not join the Union, they could
be terminated. No agency fee or dues authorization cards were
distributed to the employees on March 17, because the March 3
memorandum of agreement (GC Exh. 8) had not been ratified
by the union membership.
The ratification of the memorandum of agreement occurred
on March 27. Bilotti and Sherman returned to the Albany facil­
ity on April 15, and met with the drivers. At the meeting, at-
tended by five drivers, Bilotti distributed agency fee cards to
the drivers. Those in attendance signed the cards on that date
and returned them to Bilotti (GC Exh. 9).
On August 12, Bilotti and Sherman visited the Albany facil­
ity and held a meeting with the drivers. Bilotti informed the
drivers that a number of grievances and unfair labor practices
had been filed against U.N.D.S. involving the issue of whether
the Albany facility was part of the parties’ collective-
bargaining agreement. Additionally, he apprised the drivers
that if some of them did not have enough money to pay the
agency fee in a lump sum, a provision could be made to pay it
incrementally and the time period extended.6
On or about August 18, Kilian filed unfair labor practice
charges against Respondent and U.N.D.S. contesting the re­
quirement to pay agency fees and dues to the Union and the
parties’ collective-bargaining agreement provision that a failure
to pay such fees or dues would result in termination. On Sep­
tember 29, U.N.D.S. entered into an informal settlement
agreement with Kilian and the Board to resolve the underlying
unfair labor practices (GC Exh. 11). As part of the settlement,
U.N.D.S. agreed to pay one-half of the money that had been
paid to the Union in the form of agency fees or dues and to post
a notice to employees for a period of 60 days.
C. Analysis
1. The position of the parties
The General Counsel opines that when Respondent entered
into a collective-bargaining agreement with U.N.D.S. on March
3, and obtained recognition as the exclusive collective-
bargaining representative, it did so at a time that it did not rep­
resent an uncoerced majority of the Unit. Likewise, the Gen­
eral Counsel argues that the requirement contained in the par-
ties’ collective-bargaining agreement to require employees to
become members of Respondent, and/or to pay an agency fee to
Respondent as a condition of employment, was entered into at a
time that the Respondent was not the lawfully recognized ex­
clusive collective-bargaining representative. In articulating this
argument, the General Counsel contends that the Albany facil­
ity is a separate appropriate unit and before Respondent can
become the exclusive collective-bargaining representative of
these employees, it must establish majority status. Here, the
General Counsel opines that majority status was not obtained
6 Kilian attended this meeting and credibly testified that Sherman
told the employees in attendance that the deadline to pay the agency
fees was September and if the money was not paid by that date, the
employees could be terminated. Likewise, Kilian testified that after the
meeting, Bilotti told him that if you cannot pay dues or initiation fees
you will be fired.
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
until after the parties’ collective-bargaining agreement became
effective on March 17.
The Respondent argues that from the time the Albany facility
was established, they have continuously asserted that the driv­
ers come under the Union’s jurisdiction and accreted into the
Unit (GC Exh. 4). Indeed, the Respondent points to article 1 of
the parties’ collective-bargaining agreement that states in perti­
nent part, “[t]he provisions of this Agreement shall apply to the
Employer’s principal place of business at 175 Talmadge Road,
Edison, New Jersey and the facility at 257-4 Tyson Drive, Win­
chester, Virginia, or any other facility operated by JALT where
work of the type and nature traditionally performed by
bargaining unit members is to be performed.” Additionally, the
Respondent contends that the Albany facility does not consti­
tute a separate appropriate unit due to the common ownership,
common management, centralized control of labor relations,
and interrelation of operations that exist between U.N.D.S. and
the Albany facility. Thus, Respondent opines that such indicia
strongly support a multifacility unit rather then a single facility
unit. Under these circumstances, Respondent contends that it
lawfully extended their collective-bargaining agreement to
cover the drivers employed at the Albany facility and did not
violate Section 8(b)(1)(A) or 8(b)(2) of the Act.
2. Single facility indicia
Caverly credibly testified that he is responsible for hiring and
firing employees at the Albany facility, dispatching employees
to their work assignments, and handles all personnel problems
of the Albany employees. Likewise, he prepares the payroll for
the Albany facility before sending the finalized figures to Edi­
son who then prepare checks for payment directly to the Al­
bany employees. Caverly stated that there is no interchange of
drivers between Edison and Albany and he does not have any
supervisory control over the Edison drivers. Likewise, there
are no permanent or short-term transfers of drivers between
Edison and the Albany facility. Lastly, Caverly testified that he
prepares customer bills from his Albany computer and all tele­
phone and repair bills go directly to Albany for his approval
before being forwarded to Edison for payment.
3. Multifacility indicia
Bilotti credibly testified that prior to the establishment of the
Albany facility in March 1999, Edison drivers delivered third
class mail and periodicals. After March 1999, Bilotti observed
that Albany drivers would either pickup third class mail from
Edison or return to Edison with third class mail on their trucks.7
The record demonstrates that JB Leasing Corporation performs
all of the maintenance on both Edison and Albany trucks in
New Jersey and Albany trucks have the same JB Leasing Cor­
poration logo on the side of their cab door as well as the same
ICC numbers as the Edison vehicles. Drivers employed in
Edison and Albany have the identical U.N.D.S. fuel purchase
and New Jersey Turnpike Authority credit cards with all pay­
ments being made from Edison. As discussed earlier, the Jan-
7 The Respondent might have legitimate arguments and the under­
pinnings for a meritorious grievance concerning work that has been
transferred from U.N.D.S.-Edison to AMPS-Albany, however, that
issue is not presently before me.
sons umbrella of companies including JB Trucking Corporation
show Joseph Baio as chairman or president with his sons Tho-
mas and Louis, serving as officers of the individual companies.
Thus, common ownership and management are found among
the companies. Lastly, the record includes evidence of the
existence of uniform rules, regulations and policies, the central­
ized nature of administration, accounting, wages and benefits,
the common skills and functions of the drivers, and a combined
seniority list of Albany and Edison drivers.
4. Conclusions
Accretions to an established bargaining unit are regarded as
additions to the unit and therefore as part of it. The Board has
followed a restrictive policy in finding accretion because it
forecloses the employee’s basic right to select their bargaining
representative. Towne Ford Sales, 270 NLRB 311 (1984).
Thus, the accretion doctrine is not applicable to situations in
which the group sought to be accreted would constitute a sepa­
rate appropriate bargaining unit. Passavant Retirement &
Health Center, 313 NLRB 1216 (1994).
A single plant unit is presumptively appropriate unless it has
been so effectively merged into a more comprehensive unit, or
is so functionally integrated that it has lost its separate identity.
J & L Plate, 310 NLRB 429 (1993). To determine whether the
presumption has been rebutted, the Board looks at such factors
as central control over daily operations and labor relations,
including extent of local autonomy; similarity of skills, func­
tions, and working conditions; degree of employee interchange;
and bargaining history, if any. Esco Corp., 298 NLRB 837,
839 (1990), and cases cited.
The present case presents indicia supporting both a single lo-
cation as well as the appropriateness of a multifacility unit.
Although I agree that U.N.D.S. and the Albany facility have a
number of common policies and procedures and centrally ad-
minister certain aspects of their operations, I find that the evi­
dence regarding local autonomy, lack of interchange, and lack
of geographic proximity of the facilities is sufficient to rebut
the multifacility unit or accretion of the Albany facility into the
parties’ collective-bargaining agreement.
The Albany facility has a local manager and a local dis­
patcher. Caverly makes all hiring decisions and assigns drivers
to routes from the Albany facility. He has no supervisory con­
trol over any of the Edison drivers. All personnel related mat­
ters including absences, tardiness, or requests for leave of the
Albany drivers are the sole responsibility of Caverly. Likewise,
drivers are instructed to contact Caverly if problems arise while
they are on the road making deliveries. Thus, the existence of
the centralized administration and control of some labor rela­
tions policies and procedures is not inconsistent with a finding,
as here, that there exists sufficient local autonomy to support
the single location presumption.
The record further demonstrates that there is a lack of sig­
nificant interchange involving the Albany terminal and there is
no permanent or temporary transfer of drivers between the Al­
bany and Edison facilities.
Based on the forgoing, the evidence presented does not es­
tablish that the Albany terminal has been so effectively merged
into a more comprehensive unit, or is so functionally integrated,
NEWSPAPER & MAIL DELIVERS OF N.Y. (U.N.D.S.) 1107
that it has lost its separate identity. Therefore, I find that the
Albany facility is an appropriate unit. Under these circum­
stances, when the Respondent obtained recognition from and
entered into a collective-bargaining agreement with U.N.D.S.
as the exclusive collective-bargaining representative at a time
that it did not represent an uncoerced majority of the Unit, it
violated Section 8(b)(1)(A) of the Act. Additionally, when the
Respondent threatened employees with discharge if they did
not become members of the Union on March 17 and August 12,
it also violated Section 8(b)(1)(A) of the Act. Lastly, when the
Respondent applied the portion of the parties’ collective-
bargaining agreement to unit employees that required them to
become members of Respondent and/or to pay an agency fee to
Respondent, at a time when it did not represent the employees,
it violated Section 8(b)(2) of Act. Amalgamated Industrial &
Service Workers Local 6 (X-L Plastics), 324 NLRB 647 (1997).
CONCLUSIONS OF LAW
1. JALT Corporation d/b/a U.N.D.S. is an employer, en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening employees with discharge if they refuse to
join or support Newspaper and Mail Deliverers’ Union of New
York and Vicinity and by demanding and obtaining recognition
from U.N.D.S., and enforcing a collective-bargaining agree­
ment at a time when it did not represent a majority of the Al­
bany, New York facility employees, it has restrained and co­
erced employees in violation of Section 8(b)(1)(A) of the Act.
4. By demanding and receiving agency fees and dues de­
ducted from the wages of the Albany facility employees,
Newspaper and Mail Deliverers’ Union of New York and Vi­
cinity has restrained and coerced employees of the Albany,
New York facility in violation of Section 8(b)(1)(A) and
8(b)(2) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu­
ate the policies of the Act.
Newspaper and Mail Deliverers’ Union of New York and
Vicinity will not give effect to the collective-bargaining agree­
ment with U.N.D.S., with respect to the drivers at the Albany,
New York facility, unless and until it has been certified as the
bargaining representative of any such employees.
Newspaper and Mail Deliverers’ Union of New York and
Vicinity will jointly and severally with U.N.D.S. reimburse all
drivers employed at the Albany, New York facility for all
initiation fees, dues and other moneys, if any, paid by, or
withheld from them, plus interest. New Horizons for the
Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]