York Transfer & Storage Co.

National Labor Relations Board - Board Decisions

Nov 20, 1953

107 N.L.R.B. 139 (N.L.R.B. 1953)

YORK TRANSFER & STORAGE CO. 139
substantial amount of work performed by the builders in the
production of staves and the related and interdependent
character of their work as builders, we further find that they
have a sufficient community of interest with the other em-
ployees to be included in a unit of production and maintenance
employees. Accordingly, we shall include them in the unit.
The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act: All production and
maintenance employees at the Employer's Ste. Genevieve,
Missouri, plant, including the acting foreman and checker,
and the builders, but excluding office clericals, professional
employees, guards, and supervisors as defined in the Act.
5. As indicated above, the Employer's operations are
seasonal in nature . During the peak of its operations it
employs approximately 11 employees. At the time of the hear-
ing in August, the Employer estimated that its operations,
which had already then been curtailed, would come to a halt
in about 6 weeks and would not be resumed until about March
or April of next year. Under the circumstances, and in
accordance with our policy in seasonal industry cases, we
shall direct that the election herein be held at or about the
approximate seasonal peak on a date to be determined by the
Regional Director among the employees in the appropriate
unit who are employed during the payroll period immediately
preceding the date of the issuance of the notice of election
by the Regional Director.
[Text of Direction of Election omitted from publication.]
YORK TRANSFER & STORAGE CO., Petitioner and LOCAL
193, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL. Case No. 35-RM-57. November 20, 1953
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 Harry Berns,
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed.
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 labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the
107 NLRB No. 47.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act.
We find no merit in the Union's contention that a current
contract bars this proceeding. The contract in question,
effective from July 15, 1953, to July 1954, was executed with
the Union by 10 specific employers, not including the instant
Employer. Furthermore, as is clearly shown in the evidence,
discussed in detail below, the Employer did not participate,
directly or indirectly, in the negotiation of this contract, or
delegate authority to any individual, association, committee,
or group of employers, to bargain for, or bind it with respect
to the contract terms.
4. The Employer in its petition alleges as appropriate a
single-employer unit consisting of all truckdrivers, truck
helpers, packers, and warehousemenin its employ. There is
no dispute as to the composition of the alleged unit. However,
the Union contends that only an associationwide or multi-
employer unit, which would include the present employees, is
appropriate for bargaining purposes. The Union's position, in
substance, is that the Employer has been a member and
participant in an employer association of household moving
and storage companies in Indianapolis, Indiana, and that this
association has historically bargained with the Union on a
multiemplo}rer basis. The Union asserts that the association
is presently known as the Indianapolis Household Movers
Association.
The essential facts, as appears in the record, are as
follows: In 1939 there was formed an organization of em-
ployers in Indianapolis under the name of Marion County
Movers Association. This association bargained with the
Union with respect to a single unit embracing certain of the
association members. However, the testimony shows that the
Marion County Movers Association--which was incorporated,
had a paid executive secretary, and required the regular pay-
ment of dues by its members--ceased to function actively as
an organization when its executive secretary resigned a year
and a half after its inception. Thereafter, the Union continued
negotiations for each contract with a committee of employers,
or an attorney representing specific employers, and the
contract reached was later signed by various individual
household movers in the area. The Employer's participation
in such contracts with the Union began in 1949. In 1950, a 3-
year contract was entered into between the Union and "the
undersigned Employer," and was signed by 16 specific em-
ployers, including the instant Employer. This contract, which
was made effective until July 15, 1953, with provision for
automatic renewal thereafter on an annual basis, was re-
opened by the Union in letters dated April 20, 1953, which the
Union sent to each of the employer signatories to the contract.
Following the reopening, in June 1953, negotiations were
commenced between the Union and certain employer repre-
sentatives, including Attorney Beattey, which culminated in
YORK TRANSFER & STORAGE CO. 141
the 1-year contract discussed above in connection with the
issue of the alleged contract bar. As above noted, there were
10 employers which ultimately signed the 1953 contract, not
including the instant Employer, which did not participate,
directly or indirectly, in the negotiation of the contract. The
evidence shows that the Union definitely understood when it
agreed to this contract that the Employer herein would not
sign. It also appears that earlier in 1952 the Union had sent a
proposed contract to individual employers in the area which
was signed by 10 such employers on an individual basis before
the 1953 contract was negotiated by the joint employers.
There is no evidence of the existence at any time of the
Indianapolis Household Movers Association, or of a similarly
named organization. It does appear that in recent years
various household movers in Indianapolis had been gathering
at monthly dinner meetings in the spring and fall of the year.
In these meetings , apart from the social aspects present,
business matters of common interest were discussed, and
when the employers were faced with the question of contract
negotiations with the Union , a panel of negotiators was desig-
nated by this group. The instant Employer attended these
meetings on an irregular basis before and after the 1953
contract was consummated. However, there is no indication
that any formal arrangement was in effect among the em-
ployers meeting in this manner: There was no office or
stationery, no membership rolls were kept, no dues were
paid, no agreements binding the members were made, and the
employers who attended these meetings varied on each occa-
sion. Nor was there any showing that the employers who
jointly signed the negotiated contract with the Union all
attended these meetings or were part of this group.
At the dinner meeting in which the panel was named for
negotiating the 1953 contract, the instant Employer instructed
the group that it could not possibly go along with the contract.
Likewise, before the 1953 contract was negotiated, the Em-
ployer informed the Union that it would not sign the contract.
At the hearing, the Employer stated its position, that while it
will continue to be interested in the problems of household
goods carriers in the area , it will commit itself to do nothing
which, in its judgment, would be detrimental to the proper
operation of its business.
All the term contracts in evidence were expressly drawn
between the Union and "the undersigned Employer"; no
association was named. And there is no evidence that in the
negotiation of these contracts representations were made to
the Union that bargaining was being conducted on behalf of an
association. Attorney Beattey who participated in the negotia-
tion of the 1953 contract (but not the 3-year contract in 1950)
was retained by only 8 specific employers which were named
by him during the negotiations; he did not represent all the
ultimate signatories to the contract , and clearly notthe instant
Employer. In each case before the joint contract with the
337593 0 - 55 - 11
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer group was finally negotiated, it appears that the
Union executed individual contracts with various Indianapolis
employers in the household moving business. On August 10,
1953, the Union struck only those household movers which had
not agreed to the terms of the Union ' s proposed contract, but
not all the employers alleged by the Union as constituting the
association.
Under Board law , it is not a prerequisite for the establish-
ment of an associationwide or multiemployer unit that there
be evidence of an employer association with formal organiza-
tional structure , or that the members delegate to the associa-
tion final authority to bind them ,' or that the association
membership be nonfluctuating . 2 The settled criterion for the
inclusion of an employer in a multiemployer bargaining unit
is whether the employer unequivocally intends to be bound
in collective bargaining by group, rather than individual,
action.3 Thus , participation by an employer in group bargaining
provides such evidence of the employer ' s intention.4 But
whatever an employer's previous bargaining policy or practice
may have been , there is no question as to the principle that the
employer may properly withdraw from an existing multi-
employer unit, provided it clearly evinces at an appropriate
time 5 its intention of pursuing an individual course in bar-
gaining. 6
Thus, on the immediate issue before us , it is unnecessary
to decide whether or not a sufficiently stable core of employers,
including the Employer, have historically been involved in
group bargaining with the Union to warrant the finding of a
continuing , definable multiemployer unit. For, in any case,
as we are convinced on this record , the Employer has clearly
indicated in a timely fashion its intention to pursue an individ-
ual course in bargaining . 7 We find, therefore, that a single-
employer unit of the Employer's employees is appropriate
for bargaining.
As already noted, the parties are in agreement as to the
composition of the unit . Some question was raised at the
hearing, however, with respect to the supervisory status of
the crating foreman (Harves ), and the warehouse foreman
(Sloan). The Union would include these individuals in the unit;
the Employer indicated no opposition to such inclusion and
would leave the matter for Board determination . Neither of
these individuals has the authority to hire or discharge em-
'See Coca-Cola Bottling Works Co., 91 NLRB 351; Metz Brewing Co., et al., 98 NLRB
409.
2See Samuel Bernstein and Co., et al, 98 NLRB 1144.
3See Associated Shoe Industries, 81 NLRB 224; Pacific Metals Co., 91 NLRB 696.
4See The Plumbing Contractors Assn.. 93 NLRB 1081; Coca-Cola Bottling Works Co,
93 NLRB 1414; cf Wirts Distributing Co., 82 NLRB 669
5 See Laris Motor Sales, Inc., 104 NLRB 1106; cf. Pioneer, Inc , 90 NLRB 1848.
6 See Air Conditioning Co. of So. Calif, 81 NLRB 946; Milk and Ice Cream Dealers, 94
NLRB 23; Sullivan Mining Co., et al., 101 NLRB 1366; Laris Motor Sales, Inc., ibid
7 See cases cited in footnote 6.
MEIER ELECTRIC & MACHINE CO., INC. 143
ployees, to grant time off, or to assign employees to the
different departments in the Employer's business. Both direct
their subordinates in the performance of their duties, which
were testified as routine. However, both may recommend
that an employee be transferred out of their respective
departments to some task elsewhere in the company. One
instance was cited in which Harves recommended that an
employee be discharged, but this employee was merely trans-
ferred to a different department. Harves and Sloan both spend
a comparatively small percentage of their time directing
employees, and spend the large remainder of their time in
physical work or in clerical and checking duties. We conclude
on these facts that Harves and Sloan are not supervisors, and
shall therefore include them in the unit.
Accordingly, we find that the following employees constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act:
All truckdrivers, truck helpers, packers, and warehousemen
of the Employer at its Indianapolis, Indiana, plant, including
the warehouse foreman and the crating foreman, but excluding
vehicle mechanics, office clerical employees, guards, profes-
sional employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Member Rodgers took no part in the consideration of the
above Decision and Direction of Election.
MEIER ELECTRIC & MACHINE CO., INC. and INTERNA-
TIONAL UNION OF ELECTRICAL, RADIO AND MACHINE
WORKERS, CIO, Petitioner. Case No. 35-RC-932. Novem-
ber 20, 1953
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 Bruce Gillis,
Jr., hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed.
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 labor organization involved claims to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
107 NLRB No. 43.