United Parcel Service of New York, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1947

74 N.L.R.B. 888 (N.L.R.B. 1947)

In the Matter Of UNITED PARCEL SERVICE OF NEW YORK, INC., EM-
PLOYER and LOCAL No. 117, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL,
PETITIONER
Case No. 2-R-7705.-Decided July 31, 1947
Proskauer, Rose, Getz c Mendelsohn, by Mr. Howard Lichtenstein,
of New York City, for the Employer.
Mr. Thomas L. Parsonnet, of New York City, for the Petitioner.
Mr. Carl S. Carlson, of New York City, for the Intervenor.
Mr. Herbert C. Kane, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at New
York City, on May 15, 1947, before Bertram Diamond, hearing offi-
cer. The hearing officer's rulings. made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
I. TIIE BUSINESS OF THE EMPLOYER
United Parcel Service of New York, Inc., a New York corporation
having its principal office in New York City and various substations
located in New York and New Jersey, is a contract carrier, engaged
in parcel delivery for retail department stores and specialty shops lo-
cated in New York and New Jersey. It operates under contract car-
rier permits of the Interstate Commerce Commission and the New
York Public Service Commission.
During the past year its total receipts for delivery services exceeded
$500,000, of which more than $100,000 was derived from deliveries
made across State lines.
74 N. L. I3 B, No. 137.
888 -
UNITED PARCEL SERVICE OF NEW YORK, INC. 889
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer:
International Association of Machinists, herein called the Inter-
venor, is an unaffiliated labor organization, claiming to represent em-
ployees of the Employer. District 15 of the Intervenor admits to mem-
bership employees in the New York City area, including Jersey City;
District 47 admits to membership other employees in New Jersey.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of ship employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
The Intervenor contends that a 2-year contract signed on July 25,
1946, covering employees who are the subject of the instant petition,
constitutes a bar to a determination of representatives at this time.
The Petitioner disagrees.
The operations of the Employer
The Employer is engaged in the delivery of parcels for retail de-
partment stores and specialty shops in the Metropolitan New York
City area and in New Jersey. Its contracts include approximately
300 stores. As it extends its business, it usually absorbs into its own
organization the delivery service employees of its new customers.
The delivery service employees of the Employer are divided into
two work groups : (1) drivers, including truck drivers, helpers, craters,
and packers who are engaged in the crating and delivery of merchan-
dise; and (2) shop employees, such as automobile mechanics, helpers,
body men, and painters, who maintain the delivery trucks. The Em-
ployer's delivery service employees are also divided into two geo-
graphical groups: (1) those who work in the Metropolitan New York
area, which includes Jersey City,' and (2) those who work elsewhere
in the State of New Jersey. This proceeding is concerned with shop,
employees in New Jersey (excluding Jersey City).
The Employer's shop employees in New Jersey are directly under
the superintendent at the Gould Avenue, Newark, shop, and subject
' Employees who work in Jersey City have been traditionally included in contracts «rtlr
New Toik City employees.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to general supervision of the Employer's main office at New York City.
Shop employees at the Elizabeth Avenue, Newark, shop, the largest
shop of the Employer, are directly under the supervision of a local
shop supervisor. Other shop employees are under the immediate
supervision of working foremen at the several shops at which they
Are stationed. The Employer's New Jersey shop employees are gen-
erally subject to transfer to its other New Jersey shop installations,
although such transfers are infrequent. The parties to this pro-
ceeding agree that shop employees of the Employer in New Jersey,
excluding Jersey City, constitute an appropriate bargaining uit,
and employees so described have been the subject of contracts between
the Employer and the Intervenor since 1939.
The execution of the contract
In the spring of 1946, their prior contract expiring on April 1, 1946,
the Employer and the Intervenor were engaged in negotiating a new
contract covering the Employer 's shop employees in New Jersey, ex-
cluding Jersey City . At this time there were approximately nine shop
employees in the contract unit. Of these nine employees , six were sta-
tioned at Gould Avenue, Newark, shop, two were at the Paterson
shop, and one was at the Hackensack shop. During the period of these
negotiations , the Employer was arranging to take over the delivery
services of L. Bamberger & Co . and R . H. Macy S, Co. As part of
the arrangement , the Employer agreed to offer employment to all
delivery service employees at the stores involved.
The following events then took place:
(1) On June 22, 1946, the Employer completed its arrangements
respecting the L . Bamberger & Co.3 delivery service.
(2) On June 25 , 1946, the Employer signed a new contract with
the Intervenor covering all shop employees of the Employer in
New Jersey .4 This contract , made retroactive to April 1 , 1946,
contains union shop and preferential hiring clauses , has a terminal
date of April 1, 1948, with a 30-day automatic renewal clause,
'A location at Red Bank and a "furniture location" in Newaik were also serviced by
these same employees.
3 On or about this time the Employer also completed its arrangements to take over the
delivery service of Macy's The transfer of Macy's delivery service employees to the Em-
ployer appeared to raise no question concerning the representation of the Employer's
employees as thus augmented
4 Although the contract by its terms purports to cover "all" shop employees of the Em-
ployer , the contract is made with District 47 of the Intervenor , which covers New Jersey
only , excluding Jersey City The parties agree that a similar parallel agreement was made
with District 15 of the Intervenor, covering the shop employees in the Metropolitan New
York City area, including Jersey City.
UNITED PARCEL SERVICE OF NEW YORK, INC. 891
and a provision for reopening of the contract on April 1, 1947,
for discussion on wages and hours.'
(3) On June 26, 1946, delivery service employees of Bamberger's
were notified of the arrangements of June 22, 1946, and on June
27, 1946, they were transferred to the Employer's pay roll.
As a result of this transaction, the Employer's 9 shop employees in
New Jersey were augmented by 20 new shop employees.
As part of its arrangements with Bamberger's, the Employer also
took over an Elizabeth Avenue shop and a Plain Street shop in New-
ark previously operated by Bamberger's and left in their former
locations the shop employees of Bamberger's thus recently acquired:
The Employer, however, transferred 2 of the former Bamberger em-
ployees, first to its Hackensack shop and then to a new location in
Englewood. The Employer later hired 4 new employees. At the time
of the hearing on the instant petition, the Employer listed 21 shop
employees at the Elizabeth Avenue shop, 6 at the Gould Avenue shop,
1 at the Plain Street shop, 2 at Paterson and 2 at Englewood. Other
employees were temporarily. assigned to other New Jersey locations,
retaining their permanent placement at the shops from which they
were respectively removed. There were apparently 32 shop employees
in the contract unit at the time of the hearing in this proceeding.
At the time when the Employer made its arrangements to take
over Bamberger's delivery employees, all such employees, both driver
and shop classifications, were members of the Teamsters' locals. No
question thereafter arose concerning the representation of the approxi-
mately 300 drivers, helpers, etc., since locals of the Teamsters also
represented the Employer's drivers at that time. The Intervenor,
however, represented the Employer's shop employees at the time
of the transfer, while the Teamsters represented Bamberger's shop
employees.
Conclusions
The Intervenor, as noted above, contends that the contract of June
25, 1946, constitutes a bar to a present determination of representatives
at this time. We do not agree.
The contract, retroactive to April 1, 1946, has already been in effect
for more than 1 year. Although we have held that 2-year contracts
may constitute a bar to a determination of representatives for the full
contract term, we believe that, inasmuch as the contract was signed at
a time when the Employer had completed plans for expansion and such
I In accordance with the terns of the contract, it was reopened in April 1947 and dis-
cussions regarding wages and ' hours were in progress at the time of the healing on May
15, 1947
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expansion was imminent, to withhold an election at this time would
deny the employees in the expanded unit the right to select bargaining
representatives of their own choosing for an unreasonable period of
time. We therefore find that the contract executed on June 25, 1946,
is not a, bar to an election at this time.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
Iv. THE APPROPRIATE UNIT
We find, in accord with the agreement of the parties, that all shop
employees of the Employer in New Jersey (except Jersey City), in-
cluding automobile mechanics, helpers, painters, body men, and work-
ing foremen, but excluding the superintendent at the Gould Avenue,
Newark, shop, the supervisor of the Elizabeth Avenue, Newark, shop,
and all other supervisory employees, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with United Parcel Service of New
York, Inc., New York City, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Second Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Sections
203.55 and 203.56, of National Labor Relations Board Rules and
Regulations-Series 4, among the employees in the unit found appro-
priate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, and including employees
in the armed forces of the United States who present themselves in
person at the polls, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or re-
instated prior to the date of the election, to determine whether they
desire to be represented by local No. 177, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL,
,or by District 47, International Association of Machinists, for the
purposes of collective bargaining, or by neither.
e Any participant in the election heiem may, upon its prompt request to, and approval
thereof by , the Regional Director, have its name removed from the ballot.