Bowman Transportation, Inc.

National Labor Relations Board - Board DecisionsJun 11, 1963

142 N.L.R.B. 1093 (N.L.R.B. 1963)

BOWMAN TRANSPORTATION, INC . 1093 WE WILL restore all seniority and other rights and privileges to: James Ballard Donald Richards Harold Kauffman Harold Stribling WE WILL make whole all of the above-named employees for any loss of pay suffered as a result of our discrimination against them. All our employees are free to become, remain , or refrain from becoming or re- maining, members of the above-named or any other labor organization. ARKANSAS -LOUISIANA GAS COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of the right to full reinstatement upon ap- plication in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced , or covered by any other material. Employees may communicate directly with the Board 's Regional Office , 714 Falls Building, 22 North Front Street , Memphis, Tennessee , 38103, Telephone No. Jack- son 7-5451 , if they have any question concerning this notice or compliance with its provisions. Bowman Transportation , Inc., Petitioner and International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America and Southern Conference of Teamsters.' Case No. 10-ISM-353. June 11, 1963 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 Kathryn M. Rossback, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. 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 organizations involved herein claim to represent cer- tain employees of the Employer. At the hearing, Locals Nos. 612 and 71, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, I The International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , hereinafter referred to as International , and the Southern Conference of Teamsters , hereinafter referred to as Southern Conference , were jointly certified by the Board In Case No . 10-RC-4962, not published in NLRB volumes of Board decisions, as the bargaining representatives . Southern Conference participated at all stages of the hearing. Although the International was served with notice of the bearing, it failed to appear. We do not construe the International 's unexplained absence from the hearing as a disclaimer of its interest in representing the employees . Cross Paper Products Corporation, 88 NLRB 1037. 142 NLRB No. 115. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hereinafter respectively referred to as Local 612 and Local 71, were each permitted to intervene on the basis of a showing of interest.' Towards the close of the hearing, Teamsters Local Union No. 592 moved to intervene for the purpose of participating in an election encompassing a unit of employees at the Employer's Richmond, Vir- ginia, terminal. The hearing officer denied the motion for interven- tion because the authorization cards submitted in support of its show- ing of interest were not originals. Thereafter, Local 592 excepted to the hearing officer's ruling and subsequently forwarded the original authorization cards to the Board together with a motion to remand thehearing in order to permit its intervention. In view of our determination that the unit sought by Local 592 is inappropriate, and because it has not indicated any desire to par- ticipate in an election covering the systemwide unit, found appropri- ate hereinbelow, we find that the hearing officer's ruling was not prejudicial. We therefore deny Local 592's motion. Local 612 intervened, but sought a systemwide unit of over-the-road drivers or, alternatively, the employees at the Gadsden and Birming- ham, Alabama, terminals, including all over-the-road drivers. As it has not expressed a desire to appear on the ballot in an election en- compassing a systemwide unit, hereinafter found appropriate, no provision is made at this time for placing it on the ballot in the election ordered herein. 3. The representation question : The Employer questions the majority status of the certified repre- sentative on the ground that the International and Southern Con- ference have engaged in an economic strike for more than a year and all strikers have been permanently replaced. At the hearing, Southern Conference and Local 612 moved for dismissal of the petition on the grounds that the Employer has pre- sented no showing that any union other than the certified representa- tives claims to represent its employees. Thus, the Intervenors con- tend that the instant petition is tantamount to a decertification petition which cannot be properly filed by an employer. This motion was referred to the Board. In view of our disposition of the peti- tion, infra, we deny Intervenors' motion. The Boardhas uniformly processed employer-petitions if the statu- tory requirements for filing such a petition are met, and, as here, there is no contract bar. The requirements are a claim of representa- tive status in the unit covered by the petition, and rejection of the s During the course of the hearing , the attorney representing Local 71 stated that the Union had been placed in trusteeship by the International and that he was no longer authorized to represent it. However , as the present state of the record shows that Local 71 has indicated a desire to participate in any election which the Board may direct, we shall afford it a place on the ballot with leave to withdraw therefrom by an appropriate request at any time prior to the election BOWMAN TRANSPORTATION, INC. 1095 claim or questioning such status by the employers The record estab- lishes that the International and the Southern Conference have en- gaged in an economic strike from November 4, 1961, to the present, and continue, at relevant times, to claim recognition as bargaining agents for the Employer's road drivers and terminal employees. Under these circumstances and in view of the fact that the certifica- tion year has elapsed, we find that the instant petition raises a ques- tion concerning representation.4 4. The appropriate unit question : The Employer is an Alabama corporation engaged in the busi- ness of transporting freight by truck as a common carrier. It main- tains 15 terminals in various cities, including Gadsden, Mobile, and Birmingham, Alabama; Asheville and Charlotte, North Carolina; Charleston and Greenville, South Carolina; Atlanta and Savannah, Georgia; Chattanooga and Memphis, Tennessee; Miami and Pensa- cola, Florida; Richmond, Virginia; and Baltimore, Maryland. The Employer-Petitioner contends that the systemwide unit set forth in its petition, as established by the bargaining history 6 and the prior Board certification, constitutes the only appropriate unit. The Southern Conference contends that three separate units of (1) all over-the-road drivers, (2) all terminal employees, and (3) all garage or shop employees are appropriate. Local 71 asserts that each of the terminals constitutes a separate, appropriate unit, while Local 612 seeks to represent a systemwide unit of the over-the-road drivers or, alternatively, the employees at the Gadsden and Birmingham, Alabama, terminals, including all over-the-road drivers. Both South- ern Conference and Local 71, however, have indicated a desire to appear on the ballot for any unit found appropriate by the Board. In support of its unit position, the Southern Conference contends that each of the three classifications set out above is under separate super- vision, and further, that each of the 15 terminals is operated autonomously. Although there are some factors which tend to support the smaller units preferred by the Intervenors, the record shows that there have been no substantial changes in classification or job duties since the hearing which preceded the prior Board certification in 1961. There- fore, in view of the prior certification, the bargaining history, and the absence of any compelling circumstances which would require a different unit determination, we find that the systemwide unit con- stitutes the unit appropriate for the purposes of collective bargaining. B Westinghouse Electrw Corporation, X-Ray and Industrial Electronics Division, 129 NLRB 846. ' American Metal Products Company, 139 NLRB 601. 6 The Employer and District 50, United Mine Workers of America, were signatories to a 2-year collective-bargaining agreement which expired on July 20 , 1961 , covering substan- tially the same systemwide unit sought in the instant petition. 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There remains for consideration the placement of certain disputed classifications. Dock foremen: The dock foremen at each of the 15 terminals, clas- sified as supervisors, have been previously excluded from the unit, and the Employer would continue to exclude them. The Intervenors took no position on their placement. The record testimony establishes that dock foremen are authorized to hire, fire, and discipline dock employees. They make work assignments, responsibly direct dock- men in their job duties, and select employees for overtime work. In addition, they are salaried, receive separate insurance benefits, and are designated as supervisors. As it is clear that the dock foremen possess and exercise supervisory authority, we shall exclude them from the unit. Owner-operators: There are approximately five owner-operators whom the Employer would ' exclude as independent contractors. Southern Conference contends that these owner-operators are em- ployees and should be included in the unit. The owner-operators lease their tractors and trailers for the Em- ployer's exclusive use, and their equipment bears the name of the Employer. The operators are paid a percentage of gross revenue received from hauling and no deductions for social security or with- holding taxes are made by the Employer. They bear the cost of load- ing and unloading the tractors, of servicing their equipment, of taxes, and all insurance except on the cargo. As drivers they are subject to the Employer's rules and regulations and are permitted to use the Employer's terminals and other facilities. The owner-operators have no control over the frequency or length of trips; they can hire sub- stitute drivers when necessary, but subject to the approval of the Employer. The Employer inspects the equipment at regular inter- vals, handles complaints, and can terimnate the relationship upon short notice. Under established Board policy, where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished, the relationship is one of employment.' It is clear from the foregoing that the Employer has retained such right of control.' Accordingly, we find that the owner-operators are employees of the Employer and we shall therefore include them within the unit. Upon the entire record, we find that the following employees of the Employer constitute a unit appropriate for the purposes of col- lective bargaining within Section 9 (b) of the Act : See Coca-Cola Bottling Company Of New York , Inc., 133 NLRB 762; Mound City Yellow Cab Company, 132 NLRB 484. 7 See National Van Lines, 117 NLRB 1213 , 1219-1220 ; Cf. Mohican Trucking Company, 131 NLRB 1174, 1179. BOWMAN TRANSPORTATION, INC. 1097 All checkers, drivers (over-the-road and pick-up), dockmen, shop- men, owner-operators, mechanics, and mechanics' helpers throughout the Bowman system; but excluding dock foremen, executives, dis- patchers, office janitor, office clerical employees, salesmen, professional and technical employees, watchmen, guards, casual employees, and supervisors as defined in the Act. 5. An economic strike was instituted at the Employer's Gadsden, Alabama, headquarters on November 4, 1961. The strike became systemwide in scope by November 6, and was still in existence at the time of the hearing, which was held on various dates in December 1962 and January 1963. The Employer has continued to operate during the strike with replacements, but has instituted'certain changes in operations made necessary by the strike, in order to carry on its business. Thus, the Employer obtained temporary, emergency au- thority from the Interstate Commerce Commission to bypass certain gateways; central dispatch and the safety and personnel department were moved from Gadsden to the Atlanta terminal; and the Anniston, Alabama, terminal was abandoned. That the Employer's volume of business has been curtailed during the strike is reflected in the No- vember 28, 1962, payroll, which shows a reduction of approximately 49 road drivers and 14 terminal employees as compared with the pre- strike employee complement." However, the Employer's business has been gradually increasing and the record evidence indicates there is a reasonable expectation that it will return to the prestrike level upon the termination of the strike. Voter Eligibility-Replacements The Employer contends that all of the strikers have either aban- doned the strike by returning to work or have been permanently re- placed, and that, in any event, the present employee complement is sufficient for its current business needs and no striker has any reason- able expectation of further employment. The Intervenors, on the other hand, claim that the Employer's operation during the strike has been of a temporary nature and that all newlyhired employees constitute temporary replacements for the strikers, as evidenced by (1) an unusually high turnover, rate among replacements, all of whom were hired subject to a 60-day probationary period; and (2) the abandonment during the strike of the Employer's long-established policy of permanently assigning each road driver to a particular numbered tractor.' The Intervenors thus argue that, in the absence a The November 28, 1962, payroll included 279 road drivers and 236 terminal employees whereas 328 road drivers and 250 terminal employees were employed on November 3, 1961. 9 In support of these contentions , Southern Conference and Local 612 jointly proffered an analysis of drivers ' logs and personnel records covering the period from October 15, 1961, through May 6, 1962, which was based on an inspection of the Employer 's records pursuant to a subpoena duces tecum. Southern Conference and Local 612 objected to 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a showing of permanent replacement with respect to a specific tractor, the present road driver should not be considered as a perma- nent replacement for the striker who had been assigned to the par- ticular tractor at the time of the strike. The Board has held that replacements for economic strikers are presumed to be permanent employees and eligible to vote unless the party challenging their eligibility establishes by affirmative, objec- tive evidence that such replacements were employed on a temporary basis.1° In our view, neither a high turnover rate among the replace- ments during the strike 11 nor the frequent reassignment of replace- ments to different tractors, detracts from the presumption of perma- nent status." The test whether replacements are permanent is not their length of service on the job but rather the circumstances under which they were hired" The undenied record testimony shows that the replacements were told when hired that the Employer considered them as permanent employees. Furthermore, President Bowman testified that, on several occasions, in response to questions posed at safety meetings, he reassured the replacements that they would not be displaced by returning strikers. Likewise, the hiring of replace- ments as probationary employees does not militate against a finding of permanent employment 14 Accordingly, upon the entire record, and in view of the Intervenors' failure to rebut the presumption of permanence, we find that all of the replacements are permanent em- ployees and are eligible to vote. Eligibility of Strikers From the foregoing, it is clear that the Employer's employee com- plement, because of strike conditions, has been temporarily reduced; but upon termination of the strike it is reasonable to assume it will return to the normal prestrike level. We therefore find that ap- proximately 14 terminal employees and 49 road drivers have not been replaced and retain their status as part of the normal employee com- plement. We cannot, on the present record, identify with partic- ularity which strikers have not been replaced until Employer's opera- tions become stabilized by termination of the strike. We therefore, the closing of the record by the hearing officer despite their motion for a continuance in order to complete the analysis for the remainder of the strike period and in their briefs move to reopen the record therefor . In reviewing the evidence , we have assumed that the conditions shown in the analysis have continued throughout the strike , and we have, therefore , accorded this evidence identical weight for the entire strike period . In view of our finding that such evidence falls short of rebutting the presumption of permanent replacement , there was no basis for granting the motion for continuance and we deny the request to reopen the hearing. i0 Pacific Tile and Porcelain Company, 137 NLRB 1358. u See The Mastic Tile Corporation of America , 122 NLRB 1528, 1530 , footnote 4 19 Cf . American Optical Company , 138 NLRB 681. 'a See Sherman Lumber Company , 121 NLRB 1488, 1490. 14 Pacific Tile and Porcelain Company, supra. PIONEER PHOTO ENGRAAVING, INC. 1099 shall permit all striking employees," in the election hereinafter di- rected, to vote subject to challenge. [Text of Direction of Election omitted from publication.] 16 No evidence has been introduced to show that any strikers , other than those who returned to work for the Employer herein , have in any manner abandoned the strike. In the absence of such evidence , the Board presumes that they continue as economic strikers. Pacific Tile and Porcelain Company, supra. Pioneer Photo Engraving , Inc. and Photo-Engravers' Union, Local No. 32, AFL-CIO. Case No. 21-CA-4843. June 12, 1963 DECISION AND ORDER On December 19, 1962, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Intermediate Report, and the Respondent filed a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the Respondent's exceptions for the rea- sons discussed below. Accordingly, the Board only adopts those find- ings , conclusions, and recommendations of the Trial Examiner which are consistent with this Decision and Order. There is no dispute as to the essential facts. At issue here is whether or not the Respondent terminated employee Gershon Malley in viola- tion of Section 8 (a) (3) and (1) of the Act. The Respondent is a small photoengraving company which has been owned at all times relevant to this action by Ernest Baca, Fulton Toub, and Armando Gonzales. It started operating in September 1961 and, as of November 1, 1961, had a work force consisting of the three owners, Foreman Wallace Barnes, and employees George Orcutt, Edward Sterling, Walter McCormick, and Gershon Malley. All eight were journeymen photoengravers and were members of the Charging Union. 142 NLRB No. 118.