T.I.M.E.-DC, Inc.

National Labor Relations Board - Board Decisions

Sep 3, 1976

225 N.L.R.B. 1175 (N.L.R.B. 1976)

T I M.E.-DC, INC. 1175
T.I.M.E.-DC , Inc., Employer-Petitioner and General
Drivers, Chauffeurs, Teamsters and Helpers, Local
886 and International Association of Machinists and
Aerospace Workers , Local 850 . Case 16-UC-67
September 3, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Upon a petition duly filed under Section 9(b) of
the National Labor Relations Act, as amended, a
hearing was held on November 14, 19, and 20, 1975,
before Hearing Officer C. L. Moser. On March 18,
1976, the Regional Director for Region 16 transfer-
red this case to the National Labor Relations Board
for decision . Thereafter , briefs were timely filed by
T.I.M.E .-DC, Inc., herein called the Employer; Gen-
eral Drivers, Chauffeurs, Teamsters and Helpers, Lo-
cal 886 , herein called Teamsters; and International
Association of Machinists and Aerospace Workers,
Local 850, herein called Machinists.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings 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:
The Employer is a Delaware corporation engaged
as a common carrier in the hauling of general com-
modities by motor vehicle. The Employer operates in
several States of the United States and has one facili-
ty located in Oklahoma City, Oklahoma, the only
facility involved in the instant proceeding.
The Employer has filed the petition herein, seeking
clarification of a bargaining unit of its shop employ-
ees at its Oklahoma City, Oklahoma, facility, for
which the Machinists was certified on July 9, 1973
(see infra). The Employer and the Teamsters request
that the Board clarify the certified shop unit so as to
exclude certain work formerly performed by ser-
vicemen in that unit and "assign" such work to em-
ployees in a separate city pickup and delivery bar-
gaining unit , which is represented by the Teamsters.
The Machinists contends that the Board should defer
to an arbitration award which assigned the work to
employees in the shop unit.'
The shop unit did not exist prior to 1954. In that
year the Employer expanded its operations and, as a
result, created several maintenance job classifica-
tions. Later that same year, the Employer voluntarily
recognized the Machinists and the Teamsters as a
joint collective-bargaining representative for the shop
unit. It is essentially undisputed that, since 1962 and
at all times thereafter during the joint representation
of the shop unit, the employees therein who per-
formed the work in controversy were members of the
Teamsters and were covered by the Teamsters Na-
tional Master Freight Agreement and Southern Con-
ference Area Local Freight Forwarding Pick-up and
Delivery Supplemental Agreement notwithstanding
that these employees were not included in the Team-
ster-represented city pickup and delivery unit.
From 1962 to July 1, 1973, the servicemen in the
jointly represented shop unit performed certain du-
ties known as hookup work.; The work in question is
divided into two functions, only the second of which
is in controversy and is described herein. Essentially,
this function originates with an order by the dis-
patcher to the garage supervisor advising which trac-
tors are to be hooked to specific trailers. The garage
supervisor relays this instruction to a garage ser-
viceman who takes the tractor from the "tractor
ready" line to the trailer staging area where the trail-
er is connected or "hookup" to the tractor. The ser-
viceman also inspects the rig for obvious safety de-
fects and afterwards drives the rig to the scales for
weighing. Finally, the rig is taken to the "road ready"
line where it is turned over to the over-the-road driv-
er.
On April 17, 1973, the Machinists sent a notice of
termination, effective July 1, 1973, of the collective-
bargaining agreement covering the shop unit. There-
after, on April 26, 1973, the Machinists filed a peti-
tion for an election in the shop unit. The Teamsters
filed a petition for virtually the same unit on or about
2 The Machinists contended in its brief to the Board that the issues raised
in this proceeding were being considered by the United States Court of
Appeals for the Tenth Circuit on appeal from the dismissal by the United
States District Court for the Western District of Oklahoma of the Machin-
ists' complaint seeking enforcement of the arbitration award The Machin-
ists argues , therefore , that the Board should stay this proceeding until the
court rendered a decision On June 18, 1976, the court issued an unpub-
lished decision in which it remanded the case to the district court with
directions to reinstate the action but adopted the district court's grant to the
Employer of leave to file appropriate pleadings with the Board The court of
appeals further ordered that the district court "may entertain any motions
concerning grant of a stay of these proceedings pending an NLRB determi-
nation " Inasmuch as the court of appeals has issued its decision , we con-
e The Employer and the Teamsters have excepted to the Hearing Officer's elude that the Machinists ' request that the Board stay the instant proceeding
exclusion of evidence as to practices of other employers with respect to is moot
assignment of the work in controversy herein We agree with the Hearing 3 "Hookup" work was performed prior to 1962 but not, apparently, in the
Officer that such evidence is not relevant in a representation proceeding same manner as it was performed commencing that year and continuing to
and, therefore , find the exception without merit date
225 NLRB No. 166
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 30, 1973. Pursuant to a Stipulation for Certifi-
cation Upon Consent Election, an election was con-
ducted on June 28, 1973, in the following unit:
Included: All maintenance, repair and equip-
ment service employees including mechanics, lu-
brication men, tire men, parts men and porters
employed at the Company's Oklahoma City,
Oklahoma truck repair shop and the Oklahoma
City, Oklahoma vicinity.
Excluded: Office clerical employees, road driv-
ers unit, city pick-up and delivery unit, profes-
sional employees, guards, watchmen and super-
visors as defined in the Act.
On July 9, 1973, the Machinists was certified as the
collective-bargaining representative for the above-de-
scribed unit. Also on July 9 the Teamsters filed a
grievance under the National Master Freight Agree-
ment and Southern Conference Area Local Freight
Forwarding Pick-up and Delivery Supplemental
Agreement contending that the above-described
hookup work should be performed by employees in
the city pickup and delivery unit represented by the
Teamsters (these employees had not previously done
this work). The Southern Multi-State Grievance
Committee, on September 24, 1973, found in favor of
the Teamsters. Consequently, the Employer reas-
signed the work to employees in the city pickup and
delivery unit on or about March 11, 1974. The Ma-
chinists did not participate in this proceeding.
During the time the Employer and the Teamsters
were processing this grievance, the Employer was
also negotiating its first contract with the Machinists
as the single bargaining agent for the shop unit.
Shortly after the Employer's reassignment of the
"hookup" work to employees in the city pickup and
delivery unit, the Machinists filed a grievance claim-
ing that the work in question had been improperly
assigned to those employees. The grievance ultimate-
ly proceeded to arbitration and on February 28,
1975, the arbitrator ruled in favor of the Machinists,
holding that the work was to be returned to the em-
ployees in the shop unit. The Teamsters did not par-
ticipate in this proceeding.
The Employer refused to comply with this arbitra-
tion award and, consequently, on March 10, 1975,
the Machinists sought enforcement of the arbitrator's
decision in the United States District Court for the
Western District of Oklahoma. On July 22, 1975, the
court dismissed the complaint, instructing the Em-
ployer to file appropriate pleadings with the Board.
As a result of this decision the Employer filed the
instant unit clarification petition.
The Employer and the Teamsters contend that the
dispute herein involves an assignment of work rather
than a question concerning representation but that,
nonetheless, the issue has been appropriately raised
in this unit clarification proceeding and the Board
should entertain the petition. We disagree and find
that the work assignment issue may not be resolved
on this petition.
In Carey v. Westinghouse Electric Corp.,4 the Su-
preme Court defined the Board's authority in juris-
dictional dispute cases, holding that where the con-
troversy concerns
[W]hether certain work should be performed by
workers in one bargaining unit or those in an-
other . . . the National Labor Relations Act
. . . does not purport to cover all phases and
stages of it. While §8(b)(4)(D) makes it an unfair
labor practice for a union to strike to [force] an
employer to assign work to a particular group of
employees rather than to another, the Act does
not deal with the controversy anterior to a strike
nor provide any machinery for resolving such a
dispute absent a strike. The Act and its remedies
for "jurisdictional" controversies of that nature
come into play only by a strike or a threat of a
strike. Such conduct gives the Board authority
under § 10(k) to resolve the dispute [footnotes
omitted].5
The Employer and the Teamsters do not distin-
guish Carey v. Westinghouse, supra, but argue that
under the circumstances of the instant case the
Board should assign the work in question, applying
the doctrine enunciated in McDonnell Company 6 In
McDonnell the employer sought clarification of a
craft unit of construction and maintenance electri-
cians so as to exclude certain calibration work which
had not been performed at the time of the certifica-
tion of the craft unit. The Board majority noted that
in Carey v. Westinghouse the Supreme Court empha-
sized the difficulty of distinguishing between work
assignment disputes and controversies over which of
two or more unions to represent the employees in the
bargaining unit. The majority concluded in McDon-
nell that the Board was concerned essentially with a
unit issue arising from enlargement and extension of
the operations.' In addition, the Board majority not-
ed the long history of litigation before two arbitrators
and a Federal district court, as well as the efforts to
refrain from conduct condemned by Section
8(b)(4)(D) of the Act, and concluded it would not
serve the puiposes of the Act to subject the parties to
additional litigation, expense, and delay by refusing
4 375 U S 261 (1964)
375 U S at 263
6 173 NLRB 225 (1968)
' 173 NLRB at 225
TIM E.-DC, INC 1177
to process the petition, but that conclusion was in the
nature of dictum inasmuch as the contention that it
was a work assignment dispute had already been re-
jected.
In the instant case, as the McDonnell Company, the
parties are faced with two conflicting arbitration
awards and various court proceedings. Thus, the Em-
ployer and the Teamsters urge that it would best
serve the purposes of the Act for the Board to de-
termine definitively the work assignment issue posed
herein. However, unlike McDonnell Company, the in-
stant case does not present any unit issue, or any
question of an accretion to or enlargement or exten-
sion of the Employer's operations. On the contrary,
the disputed work has remained the same since 1962,
i.e., 11 years prior to the certification for which clari-
fication is sought, and employees in the shop unit
performed that work from that year until the Em-
ployer reassigned it to employees in the Teamsters
city pickup and delivery unit in 1974, almost 8
months after the certification issued. Thus, the rec-
ord establishes that neither the work nor the em-
ployees who performed it changed when the Machin-
ists won the 1973 election and was certified as the
sole representative of the shop unit employees, and
the sole issue is whether employees in the Teamsters
unit are entitled to perform the work. It is thus ap-
parent, and we conclude, that the McDonnell deci-
sion is inapposite here.
Furthermore, it is clear that the work assignment
issue raised herein falls squarely within the first de-
finition of a jurisdictional dispute, stated in Carey,8
since the present controversy involves a question as
to whether certain work should be performed by em-
ployees in the Machinists unit or employees in the
Teamsters unit. The Board has frequently held that
such a dispute may be resolved by this Board only in
a proceeding under Section 8(b)(4)(D) of the Act.9
We note here, however, that there has been no strike
or threat of a strike by either of the Unions involved
in this proceeding, and it is undisputed that no
charge alleging a violation of Section 8(b)(4)(D) of
the Act has been filed. Accordingly, we conclude
that we do not have authority under the Act to de-
cide the work assignment issue posed by this case.
We shall therefore dismiss the petition.1°
ORDER
It is hereby ordered that the petition for clarifica-
tion filed herein be, and it hereby is, dismissed.
8 A " jurisdictional' dispute could be one of two different, though
related, species either-(l) a controversy as to whether certain work should
be performed by workers in one bargaining unit or those in another, or (2)
a controversy as to which union should represent the employees doing par-
ticular work " 375 U S at 263
e See e g Pacific Northwest Bell Telephone Company, 21 I N LRB 102 I,
1023 (1974), and cases cited therein The Supreme Court noted this policy
with apparent approval in Carey v Westinghouse, supra at 268-269
1s We find no merit to the Machinists alternative contention that the
Board should defer to the arbitration award assigning the "hookup" work to
the employees in the shop unit, as the Teamsters was neither a party to the
arbitration proceeding nor bound by the award