United States Pipe and Foundry Co.

National Labor Relations Board - Board Decisions

May 13, 1976

223 N.L.R.B. 1443 (N.L.R.B. 1976)

UNITED STATES PIPE AND FOUNDRY COMPANY 1443
United States Pipe and Foundry Company-Soil Pipe
Division I and Teamsters Local Union No. 515, an
affiliate of the International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of
America, Petitioner
Winfrey Enterprises, Inc., United States Pipe and
Foundry Company-Soil Pipe Division ' and Team-
sters Local Union No. 515 , an affiliate of the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Petitioner.
Cases 10-RC-10552 and 10-RC-10562
May 13, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Ellen
Hampton of the National Labor Relations Board.
After the closing of the hearing, the Regional Direc-
tor, in conformity with National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
elected to transfer the case to the Board for decision.
The Hearing Officer's rulings are free from prejudi-
cial error and are hereby affirmed. Briefs were filed
by the Employers.
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.
Upon the entire record in this case, the Board
finds:
1. United States Pipe and Foundry Company,
hereinafter referred to as U.S. Pipe, is a Delaware
corporation having an office and soil pipe plant lo-
cated in Chattanooga, Tennessee, where it is engaged
in the manufacture and sale of soil pipe. Annually it
sells and ships goods valued in excess of $50,000 di-
rectly to customers located outside the State of Ten-
nessee.
Winfrey Enterprises, Inc., hereinafter referred to
as Winfrey, is a Tennessee corporation having an of-
fice and principal place of business located in Chat-
tanooga, Tennessee, where it is engaged in providing
manpower on a contract basis, including the leasing
of drivers who transport commodities in interstate
commerce. Annually Winfrey receives in excess of
$50,000 for such operations.
The parties stipulated, and we find, that the Em-
ployers are engaged in commerce within the meaning
1 The names of the Employers were amended at the hearing.
of the Act. We further find that it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The parties stipulated and we find that Peti-
tioner Teamsters Local Union No. 515, an affiliate of
the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, here-
inafter referred to as Petitioner , is a labor organiza-
tion within the meaning of the National Labor
Relations Act.
3. For reasons set forth below , no question affect-
ing commerce exists concerning the representation of
certain employees of the alleged Employers within
the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.
In 1966, the Petitioner was certified in Case 10-
RC-6676 as the collective -bargaining representative
in a unit of "all over-the-road truck drivers employed
by the Employer at its Chattanooga , Tennessee, op-
eration , but excluding all other employees , office
clerical employees , guards and supervisors as defined
in the Act ." The employer named in this certification
is Merchants & Manufacturing Transfer Company,
but it is undisputed that All-States Services of Chat-
tanooga , Inc. (a Winfrey enterprise ), became a suc-
cessor employer shortly after the representation elec-
tion in 1966. Although All-States Services, Inc., was
succeeded by Winfrey Enterprises, a sole propri-
etorship , which was in turn succeeded by Winfrey
Enterprises, Inc., it is also undisputed that each of
the employers is a successor employer and that there
has been no break in continuity of operation since
certification issued.
On June 23 , 1966, Winfrey and Petitioner negotiat-
ed the first of a succession of collective -bargaining
agreements. The most recent agreement, effective
April 8 , 1975, to April 7, 1977, provides for the recog-
nition by Winfrey of Petitioner as the exclusive bar-
gaining representative for all over-the -road truckdri-
vers. Petitioner does not dispute the validity of the
current contract with Winfrey nor does it question
the certification of the representative of these em-
ployees . It contends, however , that , notwithstanding
the foregoing , an election is timely because the driv-
ers are jointly employed by Winfrey and U.S. Pipe.
On December 10, 1975, Winfrey and U.S. Pipe en-
tered into a contract which provides that Winfrey
will provide U.S. Pipe with licensed drivers who will
operate vehicles owned or leased by U.S. Pipe. The
agreement provides for an indefinite term and "shall
run until cancelled by either party upon 30 days'
written notice prior to the proposed effective date of
termination ." The parties stipulated that U.S. Pipe
employs no over-the-road truckdrivers at its Chatta-
nooga location other than the approximately 57 driv-
ers who are leased from Winfrey pursuant to the
223 NLRB No. 217
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above contract. Although the exact time when U.S.
Pipe and Winfrey first began to transact business is
uncertain from the record, it is clear that their trans-
actions antedated the current contract.2
On December 10, 1975, Petitioner filed a petition,
listing U.S. Pipe-Soil Pipe Division as Employer,
seeking to represent all over-the-road truckdrivers
employed at the Employer's plant located in Chatta-
nooga, Tennessee. On December 22, 1975, Petitioner
again filed a petition seeking to represent the same
unit but listed the Employer as "Winfrey Enterprises
U.S. Pipe-Soil Pipe Division.
In view of the continued recognition of the Union
which was certified by the Board as a representative
of a unit which includes the employees involved
herein, we shall dismiss the petitions.'
Although in the past, in suitable circumstances, the
Board has treated representation petitions as motions
to clarify or amend existing certifications,4 we shall
not do so herein. It is clear that Winfrey has assigned
in the past, and may assign in the future, drivers to
other employers. Moreover, the contract between
Winfrey and Petitioner governing Winfrey's drivers
is not limited to the drivers in the certified unit or to
over-the-road drivers furnished to U.S. Pipe, but is
applicable to all of Winfrey's drivers. Accordingly, it
is not appropriate, at this time, for us to clarify the
unit and consider whether U.S. Pipe and Winfrey are
joint employers since the requested relief involves the
"carving out" of a unit of employees from the unit
currently covered under the Petitioner-Winfrey con-
tract.5
ORDER
2 E.G.. in 1972, U.S. Pipe employees in Anniston . Alabama, were given
the opportunity of transferring to Chattanooga. Tennessee . where they
would be hired by Winfrey and controlled by U.S. Pipe in Chattanooga.
l See Botany Mills. Inc., 101 NLRB 293 (1952).
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
4 See . e.g., 220 Television, Inc.. 172 NLRB 1304 (1968).
5 We do not intimate any views as to the merits of the joint-employer
contention.