Ruffalo's Trucking Service, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1955

114 N.L.R.B. 1549 (N.L.R.B. 1955)

RUFFALO'S TRUCKING SERVICE, INC. 1549
In view of the foregoing, and the fact that the Petitioner has tra-
ditionally represented such employees, we find that the employees en-
gaged in the lithographic process at the Employer's Houston plant
may constitute a separate appropriate unit if they so desire. We shall
not, however, make a final unit determination at this time, but shall
direct that the question concerning representation which exists with
regard to these employees be resolved by an election by secret ballot
among the employees in the following voting group : All lithographic
process employees at the Employer's plant in Houston, Texas, in-
.cluding pressmen, feeders, press supply or inkmen,' and lithographic
apprentices, but excluding all other employees and supervisors as de-
fined in the Act.
If the majority of the employees in the voting group vote for the
Petitioner, they will be taken to have indicated their desire to consti-
tute a separate appropriate unit, and the Regional Director conducting
the election herein is instructed to certify the Petitioner as repre-
sentative for the unit described in the voting group above, which
the Board finds, in that event, to be appropriate for purposes of
collective bargaining. On the other hand, if a majority vote for the
Intervenor,' they will be taken to have indicated a desire to remain
in the existing plantwide unit at the Houston plant and the Regional
Director will issue a certification of results of election to such effect.
[Text of Direction of Election omitted from publication.]
MEMBER PETERsoN took no part in the consideration of the above
Decision and Direction of Election.
'' At the hearing, the Employer took no position as to the unit sought by the Petitioner
but asserted generally that a question existed as to the unit placement of the press supply
,or inkman who handles ink plates . As this employee has special knowledge concerning
lithographic inks and plates and works entirely or substantially in connection with the
lithographic process, we include this category in the unit.
a The Intervenor requested , in the event that its unit contention be rejected, that its
name be placed on the ballot " in the unit that the Board finds ,appropriate for purposes
of collective bargaining."
Buffalo's Trucking Service, Inc. and Dominick Scutella, Peti-
tioner and International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, Local No. 506,
AFL-CIO. Case No. 3-RD-113. December 29, 1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Murray S. Freeman, hear-
ing officer. The hearing officer's rulings made at the hearing are
free from .prejudicial error and are hereby affirmed.
114 NLRB No. 246.
1550 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
- 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 Petitioner asserts that the Union is no longer the bargain-
ing representative of employees of the Employer as defined in Section
9 (a) of the Act.
3. International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local No. 506, AFL-CIO, herein called
Teamsters, began an organizing campaign among the Employer's-
employees early in 1955, and was designated by a majority of the em-
ployees. On June 17, 1955, the Employer filed it petition (Case No.
3-RM-112). Thereafter, on June 27, 1955, the Teamsters filed un-
fair labor practice charges alleging a violation of Section 8 (a) (1),
(3), and (5) (Case No. 3-CA-888). On July 14, 1955, a settlement
agreement was executed which provided, inter alia, that the Employer
would, upon request, bargain collectively with the Teamsters. The
Employer petition was withdrawn on July 26,1955.
The Employer and the Teamsters met on July 29, August 17, and
September 20, 1955, but no collective-bargaining agreement resulted.
The instant decertification petition was filed on August 17, 1955.
On September 23, 1955, the Regional Director closed Case No. 3-
CA-888, at the conclusion of the 60-day period following the settle-
ment. On the same date the Regional Director sent a letter to the
Employer and the Teamsters to that effect.
The hearing on the instant petition was held on October 20, 1955.
The Teamsters contends that the settlement agreement bars the pres-
ent decertification petition as that Union is in the same position
as a certified union, and a reasonable time, i. e., 1 year, should be
permitted the parties within which to agree on a contract.
The Employer contends that the Teamsters is not in the same
position as a certified union; that a reasonable time for the consum-
mation of a contract has already elapsed; and that the Employer hav-
ing fully complied with its obligations under the settlement agree-
ment, an immediate election should be directed.
The Petitioner takes substantially the same position as the
Employer.
In Poole Foundry and Machine Company,' the Board held that a
settlement agreement containing a bargaining provision is to be treated
as-giving the parties "a reasonable time" within which to conclude a
contract.2 In Dick Brothers, Ine.,3 the Board applied the principle
of the Poole decision in a representation proceeding. In determining
what constituted "a reasonable time," the Board has held that such
1 95 NLRB 34.
2 This decision was enforced by the Court of Appeals for the Fourth Circuit in 192 F. 2d
740, cert. denied 342 U. S. 954.
3 110 NLRB 451.
RUFFALO'S TRUCKING SERVICE , INC. -1551
determination necessarily depends upon the particular circumstances of
each case; and that what "is reasonable in one case may not be so in
another." "
To quote from a recent Board pronouncement in The Daily Press
decision : 6
At the outset, it should be noted that a determination of what
is a reasonable bargaining period must, of necessity, depend
entirely upon the particular circumstances involved. What is rea-
sonable in one case may not be so in another. Considering all
the circumstances presented in the instant situation, we are satisfied
that the Guild and the Employer had a sufficient amount of time
in which to consummate an agreement. In reaching this conclu-
sion, we note that the Regional Director, who was in a position to
view the bargaining relations of the parties from a much more
intimate vantage point than we, has now dismissed the Guild's 8
(a) (5) charges. However, he did not do so until he reviewed the
details of the meetings between the Employer and the Guild and
determined that the Employer was bargaining in good faith.
Indeed, we are administratively -advised that the Regional Di-
rector concluded that the parties had reached an impasse in their
bargaining negotiations with respect to the issue of periodic auto-
matic wage increases. Only then did he decide that there was
insufficient evidence upon which to predicate the issuance of a
complaint. [Emphasis supplied.]
In the situation now before us, the Regional Director closed Case
No. 3-CA-888 as a result of an investigation which showed, to the
satisfaction of the Regional Director, that the Employer had fully
complied with its obligations under the settlement agreement, and had
met and bargained with the Teamsters in good faith, and that indeed,
the Teamsters' conduct during the period of bargaining in July,
August, and September, 1955, evidenced a lack of good faith in con-
summating a contract.
The Regional Director was in a position to view the bargaining re-
lations of the parties "from a much more intimate vantage point"
than we, and has concluded after a thorough investigation and a
complete review of the details of the meetings between the Employer
and the Teamsters that the Employer had carried out in full its obli-
gation to bargain in good faith under the settlement agreement, and
had reached an impasse in their bargaining negotiations through no
fault of the Employer. Indeed, as we have already indicated, he went
further and found that the failure to consummate an agreement was
due entirely to the conduct of the Teamsters. While we do not have
The Daily Press, Incorporated, 112 NLRB 14.14.
Ibid.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to rely on the latter finding, we are satisfied, for the purpose of deciding
this case, that the Regional Director's conclusions warrant us in find-
ing that a reasonable period for bargaining has elapsed, in conformity
with the settlement agreement, and that the settlement agreement
is therefore not ' a bar to this proceeding." We reject the Teamsters'
contention that a settlement agreement must be treated as a certifica-
tion and 1 year be permitted the parties within which to agree on
a contract. The Board has at no time in the past regarded a settlement
agreement as tantamount to a certification. Indeed, even in the case
of a bargaining order, the Board has held that "the only purpose of the
bargaining order is to remedy the antecedent refusal to bargain and
that once this purpose has been achieved the order has no further
effect." 7 Nor do we find merit in the Teamsters' contention that the
filing of the decertification petition at the time it was filed serves as an
impediment to the direction of an election. As already indicated, the
Board has not treated a settlement agreement as equivalent to a certi-
fication. Moreover, where it appears, as it does here, that the terms
of the settlement agreement have been fully complied with and the
Employer has bargained in good faith as required by that agreement,
we perceive no valid reason for denying the employees the right to,
exercise their franchise in a Board election. In reaching this result,
we have carefully weighed all the factors present in this type of situ-
ation and concluded that the Regional Director's determination, based
on his intimate knowledge and analysis of all the details of the bar-
gaining negotiations, outweighs any other possible factors and con-
siderations. In view of the foregoing, and the fact that these em-
ployees have had no election at any time, we hold that there is no,
impediment here to the raising of a valid question concerning repre-
sentation. Accordingly, we find that the settlement agreement is no
bar and shall direct an immediate election.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In agreement with the stipulation of the parties, we find that a
unit of all drivers, driver helpers, and warehousemen employed by
the Employer at its Newark, New York, terminal, excluding all office
clerical employees, all other employees, professional employees, guards,
and supervisors as defined-by the Act, constitutes an appropriate unit
for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
6 See National Waste Material Corp., 93 NLRB 477.
7 Northwestern Photo Engraving Company, 106 NLRB 1067; see also Squirrel Brand'
Co., Ino., 104 NLRB 289.
RUFFALO'S TRUCKING SERVICE, INC. 1553'
MEMBER MURDOCK, dissenting :
It is my considered judgment that the petition in this case was pre-
maturely filed with respect to the settlement agreement and that the
failure of the Regional Director to dismiss the petition constituted er-
ror which the majority has compounded by directing an election.
The Regional Director's action approved by the majority's decision
violates a basic principle of Board law that "a bargaining relation-
ship once rightfully established must be permitted to exist and func-
tion for a reasonable period in which it can be given a fair chance
to succeed." 8 [Emphasis supplied.] The Board has long recognized
that such a bargaining relationship cannot properly function in the
face of rival petitions which are docketed by the Board. The mere
pendency of such petitions, as the Board has said, has "an intrusive
and disturbing effect upon the bargaining efforts of the parties." s
Therefore, to issue the undisturbed existence and proper functioning
of a rightfully established bargaining relationship for a reasonable
period of time, the Board has, as a matter of policy, refused to accept
petitions filed within the minimum period of time it considers neces-
sary to give the bargaining relationship a fair chance to succeed.
Thus, where a bargaining representative has been certified as the
result of a Board election, the minimum period deemed reasonable
by the Board has been set at 1 year, absent unusual circumstances, and
Regional Directors are required to dismiss petitions filed before the
end of the certification year. Where a Board Order requiring bar-
gaining or an agreement in settlement of unfair labor practice charges
which provides for collective bargaining are involved, this minimum
period is determined by the circumstances and may therefore vary
from case to case.10
With these basic precepts in mind let use examine the facts in this
case. On July 14, 1955, the Employer and the Union entered into an
agreement in settlement of certain unfair labor practice charges filed
by the Union in Case No. 3-CA-888. This agreement provided, inter
alia, that the Employer would, upon request, bargain collectively with
the Union. The Employer and the Union had one bargaining con-
ference in July. The Petitioner filed his decertification petition on
August 17, 1955, 34 days after the execution of the settlement agree-
ment. On the same day the Employer and the Union met for the
second time and their third and last conference was held on September
20, 1955. Thus 2 of the 3 bargaining conferences took place under the
cloud of the pending petition. On September 23, 1955, the Regional
Director closed Case No. 3-CA-888, concluding that the Employer had
-8 Centr- O-Cast d Engsneertng Company, 100 NLRB 150 7 , Franks Bros. Co. v. N. L. R. B.,
321 U. S. 702, 705.
0 Ibid.
10 See case cited in footnote 4, supra.
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully complied with its obligations under the settlement agreement by
meeting and bargaining with the Union in good faith. Inasmuch as
the petition herein was filed and docketed within what the Regional
Director found was a "reasonable period of time" for the bargaining
relation to function, it was clearly premature under the established
Board principles set forth above. By failing to dismiss the petition
forthwith the Regional Director prevented the rightfully established
bargaining relationship from existing and functioning free from the
intrusive and disturbing effect of rival petitions. In deciding what
was a "reasonable time," the Regional Director plainly failed to give
effect to the Board's determination in the Centr-O-Cast case, that a
petition should not be permitted to be on file while an employer and a
union are fulfilling a bargaining obligation, because a bargaining
relationship does not have a "fair chance to succeed" under those
circumstances. In this respect he erred. The Regional Director's
gratuitous finding to the effect that the failure to consummate an agree-
ment was due entirely to the conduct of the Union is, as found by
the majority, irrelevant and certainly constitutes no excuse for his
failure to dismiss the petition. Only by dismissing the petition at this
time can the Board, in my opinion, correct the Regional Director's
administrative error and preserve an important principle of Board
law.
McCarty-Holman Company and Teamsters, Chauffeurs, Ware-
housemen and Helpers , Local Union 891, AFL-CIO,' Petitioner.
Case No. 15-RC-1214. December 09, 1955
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election of the National
Labor Relations Board, dated May 16, 1955, an election by secret bal-
lot was conducted on June 3, 1955, under the direction and supervi-
sion of the Regional Director for the Fifteenth Region among certain
employees of the Employer at its plant located at Jackson, Mississippi.
The tally of ballots furnished the parties after the election shows the
following :
Approximate Number of Eligible Voters-------------------------------- 38
Void Ballots-------------------------------------------------------- 0
Votes Cast for Petitioner---------------------------------------------- 29
Votes Cast against Petitioner------------------------------------------- 9
Challenged Ballots--- ------------------------------------------------ 0
Valid Votes Counted------------------------------------------------- 38
'The AFL and CIO having merged we are amending the identification of the Union's
affiliation.
114 NLRB No. 242.