Tri-State Transportation Co., Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1969

179 N.L.R.B. 310 (N.L.R.B. 1969)

310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tri-State Transportation Company , Inc. and
Teamsters Local Union 676, affiliated with
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America, Petitioner . Case 4-RC-7970
October 23, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN 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 Joseph C
Kelly on December 4 and 17, 1968, and January 6,
15, and 16, 1969 Following the hearing, pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
,Procedure, Series 8, as amended, this case was
transferred to the National Labor Relations Board
for decision. Thereafter, briefs were filed by the
Employer, Petitioner, and Intervenors'
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. The rulings are hereby
affirmed.
Upon the entire record in this case, including the
briefs, the Board finds
I 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, Teamsters Local 676, and the
Intervenors, Local 240 and Local 102, are labor
organizations claiming to represent certain
employees of the Employer
3. The Petitioner seeks an election in a unit of all
of the Employer's drivers, drivers' helpers, platform
men, warehousemen, mechanics, mechanics' helpers
and utility men employed at its Vineland, New
Jersey, terminal The Intervenors and the Employer
contend that the Employer's contracts with both
Unions cover these employees and bar the petition.
With respect to the contracts urged as a bar, the
Employer, as a member of the Greater New York
Tailors' Expressmen's Association, is a signatory to
a collective-bargaining agreement with Local 240
covering drivers, drivers' helpers, platform men and
warehousemen. The contract is effective from June
'Clothing Express Drivers & Helpers Union Local 240, affiliated with
the International Brotherhood of Teamsters (herein referred to as Local
240) and Cloak , Dress Drivers ' and Helpers ' Union Local 102 affiliated
with International Ladies Garment Workers Union (herein referred to as
Local 102 ), intervened on the basis of contract interests
I, 1968, to May 31, 1971 In addition, the Employer
is a member of the Cloak and Suit Trucking
Association, Inc and the Garment Truckmen
Association of New Jersey, both of which entered
into identical collective-bargaining agreements with
Local 102 effective February I, 1967, to January 31,
1970. The bargaining unit covered therein is
chaffeurs, drivers and helpers, mechanics,
mechanics' helpers and mechanics' apprentices
(utility men).
The Petitioner contends, with respect to drivers,
drivers' helpers, warehousemen and platform men,
that the Employer has applied both contracts to
employees in the same appropriate unit and,
accordingly, that these contracts amount to
conflicting contracts by rival labor organizations,
and cannot be invoked as a bar to an election. In
this respect, the Petitioner claims that the Employer
has applied the terms of the Local 102 contract only
to members of Local 102 and that the terms of they
Local 240 agreement have been applied only to
members of Local 240. Therefore, the Petitioner
contends, both contracts apply to employees in a
single-appropriate unit, fail individually to
encompass appropriate units of employees, and
cannot be asserted as a bar 2
While the 8 employee members of Local 102 are
theoretically covered by the Local 102 contract, the
record reveals that the Employer has, in fact,
generally applied the terms of the Local 240
contracts to them as well as to the 60 employees
who are members of Local 240 Thus, for the period
when Local 102's contract provided for lower wages
than the 240 contract, the Employer paid to
employees who were Local 102 members the wages
set out in the Local 240 contract as well as raises,
whenever due, under the 240 contract In addition,
the Local 240 shop steward handled the grievances
of employees who were Local 102 members (Local
102 had no shop steward) The same hours and
general working conditions are applied to all.'
However, the Employer contributes to the union
welfare and pension funds depending upon the
employee's membership.
The foregoing, in our view, does not establish that
both are "members only" contracts. Rather, we find
that the Local 240 contract has been applied to all
the drivers, drivers' helpers, platform men and
warehousemen at the Employer's Vineland, New
Jersey, terminal, and that it embraces an
appropriate unit for collective-bargaining purposes.
However, the Petitioner contends that Local 240's
separate supplemental agreement with the
Employer, which expired on September 30, 1968, 4
'Appalachian Shale Products Co, 121 NLRB 1160, 1164
'The 240 and 102 drivers , drivers ' helpers, warehousemen and platform
men handle both types of garments (male and female ), often in one load
Members of both unions work on trucks together, using the same
equipment and performing the same duties They are subject to the same
seniority rules and have the same supervisors
179 NLRB No. 54
TRI-STATE TRANSPORTATION CO., INC
days before the applicable filing date of the petition 4
is the pertinent agreement for contract bar
purposes
As the master agreement and the supplemental
agreement have different terminal dates, the one to
be considered for election bar purposes is the
agreement which embodies the basic terms and
conditions of employment 5 The record reveals that
most of the basic terms and conditions of
employment are set out in the master agreement
Thus, the union-security provision, the discharge and
lay off provisions, the grievance and arbitration
procedure, the no-strike and lockout clauses, union
steward visitation provisions, and most general
conditions are set forth in the master agreement.
The supplemental agreement contains certain
variations in wages, vacations and holidays, dates of
welfare and pension fund payments, and hours
Since these modifications deal only with the
peculiarities of the Employer's operations at this
facility and in no way change the basic terms of
employment covered by the master agreement, their
incorporation in the supplemental agreement does
not warrant consideration of the supplemental
agreement as the basic agreement. Rather, it is the
master agreement which under the circumstances
herein must be determinative for contract bar
purposes. As the new master agreement had been
entered into on June I, 1968, it is a bar to the
representation petition,' for the unit covered therein
This master agreement does not cover mechanics,
mechanics' helpers and utility men However, Local
102's contracts have included those particular
classifications in industrywide contracts since 1964.
Therefore, Local 102 urges that its most recent
association contract bars the petition for this group
of employees which, we find, would otherwise
constitute a separate appropriate unit for the
purposes of collective bargaining
While the 1964 and 1967 association contracts
covered mechanics, mechanics' helpers and utility
men by classification, the Petitioner contends that
the parties did not apply the contracts in question to
individuals employed by the Employer in those
classifications. The record reveals that these
employees received none of the benefits set forth in
'It is clear that the amended petition of October 4, 1968, constituted a
substantial change from the original petition of September 20, 1968, and is
therefore considered a new petition filed after the expiration of the
supplemental agreement Cf Kaiser Cement & Gypsum Corp , 158 NLRB
1740, at fn 2, National Carloading Corp, 167 NLRB No 116, and St
Louis Independent Packing Company , 169 NLRB No 157
'Appalachian Shale Products Co , supra at 1164, General Electric
Company, 125 NLRB 718, 719, Swift & Company, 145 NLRB 756
'Since we have found that the master agreement bars the petition herein,
we need not decide whether before September 30, 1968, Local 240 and the
Employer had agreed to a new supplemental contract , when they agreed to
submit all provisions on which no agreement had been reached to
arbitration and incorporate the arbitrator' s decision with respect thereto in
the new contract
311
the association contracts. The Employer did not
make payments to the health and welfare funds of
Local 102 for these employees, but instead paid the
same Blue Cross and Blue Shield insurance for them
as it did for its unrepresented employees. The
Employer did not give these employees the vacations
and holidays set forth in the 102 contract The
union-security provisions were never applied, and
these employees have never authorized check off.
Thus, until October 1968, the Employer did not
apply the contracts to the mechanics, mechanics'
helpers and utiltiy men, and Local 102 did not seek
to administer the contract as to them.
In September 1968, the Petitioner obtained
representation cards from the mechanics, mechanics'
helpers, and utility men. It was only after Petitioner
demonstrated its interest in these employees by
petitioning to represent them that Local 102, on
October 15, 1968, instituted arbitration proceedings
to force the Employer to apply the terms of Local
102's contract to these classifications of employees.
The arbitrator's decision required the Employer to
apply Local 102's contracts to the employees in
question retroactive to February 1, 1967'
While Local 102 contends that the arbitrator's
award established coverage of these employees by
the Local 102 contracts since February 1967, it is
clear that any effort by Local 102 to apply its
contract to these employees occurred only after the
Petitioner sought to represent them, and that they
were not, in fact, represented when the petition was
filed Under these circumstances, we find that the
arbitrator's award and Local 102's belated attempt
to apply its contract does not establish the existence
of a stabilizing labor agreement which bars a
representation election among the mechanics,
mechanics' helpers and utility men.'
Accordingly, we find that the petition herein has
raised a question concerning the representation of
the following employees who constitute a unit
appropriate for the purposes of collective bargaining9
within the meaning of Section 9(b) of the Act
All mechanics, mechanics' helpers, and utility
men employed at the Employer's terminal in
Vineland, New Jersey, excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
[Direction of Election'° omitted from publication.]
'The arbitrator ordered the Employer to reimburse the employees for
overtime payments , holiday pay, and vacation pay which the contract
provided, and to pay to the Union's benefit funds an amount equal to what
should have been paid since February I, 1967
'Cf Moveable Partitions . Inc. 175 NLRB No 149
'G Fox & Co . Incorporated . 155 NLRB 1080, 1082-83, Diamond T
Utah . Inc, 124 NLRB 966
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties to the election should have access to a list of voters and their days of the date of this Decision and Direction of Election The Regional
addresses which may be used to communicate with them Excelsior
Director shall make the list available to all parties to the election No
Underwear Inc, 156 NLRB 1236, N L R B v Wyman -Gordon Company ,
extension of time to file this list shall be granted by the Regional Director
394 U S 759 Accordingly , it is hereby directed that an election eligibility except in extraordinary circumstances
Failure to comply with this
list, containing the names and addresses of all the eligible voters , must be
requirement shall be grounds for setting aside the election whenever proper
filed by the Employer with the Regional Director for Region 4 within 7 objections are filed