General Shoe Corp.

National Labor Relations Board - Board DecisionsFeb 26, 1959

122 N.L.R.B. 1619 (N.L.R.B. 1959)

GENERAL SHOE CORPORATION 1619 General Shoe Corporation and Teamsters , Chauffeurs , Helpers & Taxi Cab Drivers Local No. 327, International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, Ind., Petitioner . Cases Nos. 10-RC-3907 and 10-RC- . February 26, 19593914 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Huth Frank Malone, hearing officer, in September, October, and November, 1957. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At this hearing, the Employer moved to dismiss the petition on the ground that the Petitioner was not in compliance with Sec- tion 9(f), (g), and (h) of the Act, because there was no evidence of compliance by the Southern Conference of Teamsters, hereinafter referred to as the Southern Conference, the Tennessee Joint Council No. 87, hereinafter referred to as the Joint Council, and the Southern States Drivers Council, hereinafter referred to as the Drivers Coun- cil, labor organizations with which the Petitioner was allegedly affiliated. The hearing officer received testimony relating to the necessity of compliance by these allegedly affiliated labor organiza- tions but refused to accept evidence as to the fact of compliance, which is a matter of administrative determination.' As the Board was administratively advised that the Southern Conference was and is in compliance with the filing requirements, no further investiga- tion of the necessity for compliance has been made with respect to that organization. Upon examination of the record the Board held that there was insufficient evidence to make a determination of the necessity for compliance with respect to the Joint Council and the Drivers Council and, on June 26, 1958, ordered the record reopened for the taking of additional testimony, and the receipt of documentary evidence. The reopened hearing was held from October 7 through October 10, 1958, before John H. Fenton, hearing officer. The hear- ing officer's rulings are free from prejudicial error and are affirmed.' 1 Desaulniers and Company, 115 NLRB 1025. 'Counsel for the Employer alleges procedural errors on the part of the hearing officer with respect to the issuance and revocation of subpenas. As to those subpenas to which witnesses failed to respond, the hearing officer properly advised that he was without authority to enforce such subpenas and that application should be made to the General Counsel. See Section 102.66 and 102.31 of the Board's Rules and, Regulations. The hearing officer revoked other subpenas on the ground that the witnesses had not been tendered fees and mileage. It does not appear, nor is it claimed, that the Employer made any tender of such fees or mileage and the hearing officer's rulings are affirmed. See Section 102.66(g) of the Rules and Regulations and Rule 45, Federal Rules of Civil Procedure. The hearing officer revoked certain other subpenas on the ground that they 122 NLRB No. 192. 1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the reopened hearing the Petitioner stipulated that the Southern Conference and the Tennessee Joint Council were labor organiza- tions required to comply in the instant proceeding.' In accordance with the terms of the aforesaid Board order evidence pertaining to the structural organization of the International Brotherhood of Teamsters, etc., was received at the hearing by the testimony of the chairman-director and the secretary-treasurer of the Conference. The record shows that the Southern Conference is one of a number of similar geographical subdivisions of the International, all known as Conferences. The Southern Conference is chartered by the In- ternational and is subject to the authority of the International but operates under its own bylaws. Pursuant to these bylaws (article XIV) the Southern Conference presently maintains six trade divi- sions known as (1) the Building and Construction Division, (2) Sales Division, (3) Warehouse and Shipbuilding Division, (4) Taxicab Division, (5) Automotive and Miscellaneous Division, and (6) the Freight Division. In both this and other Conferences, these divi- sions are frequently referred to as Councils, and the uncontradicted record establishes that the Freight Division of the Southern Con- ference is also known as the Southern States Drivers Council.4 The record also establishes that the trade divisions, including the Drivers Council, were created to provide the Southern Conference with ex- perts in particular industries and to provide experienced negotiators in those industries for the purpose of obtaining uniform contracts on an areawide basis. To date, in the Southern Conference, only the Drivers Council has been able to negotiate collective-bargaining contracts with employers on an areawide level.' Membership of the Drivers Council is made up of officers of locals nominated or desig- nated by the locals which form the Conference at its annual con- vention, and the chairman of the Drivers Council is appointed by the Southern Conference chairman. The Drivers Council will meet called for the production of records and documents not necessary to a determination of the issues. The Board has reviewed the revoked subpenas and affirms the hearing officer. See Section 102.66(c). Further, in view of the large number of documentary exhibits and the length and the extent of the testimony taken with respect to the issues, we find the Employer was not prejudiced by the hearing officer's ruling. In view of the stipulation and the fact that the Board has been administratively advised that the Southern Conference and the Joint Council are in compliance, we find no issue exists with respect to the necessity of compliance by these organizations. 4 Counsel for the Southern Conference attributed this confusion in name to the fact that the Freight Division, which negotiates area contracts with motor freight carriers, was patterned after the Central States Drivers Council, the corresponding trade (motor freight) division of the Central Conference. He said that inadvertently the designation Southern States Drivers Council was used in contracts which were copies of contracts negotiated by the Central States Drivers Council, which were considered model contracts with respect to certain benefits. 5 Two such contracts were introduced in evidence, the Southeastern Over-the-Road Motor Freight Agreement and the Southern Conference Local Freight Pickup and Delivery Agreement. GENERAL SHOE CORPORATION 1621 for 1 day at the convention to discuss current problems and examine policy in the motor freight industry. The Drivers Council is not a continuing body since its members are nominated each year. It meets in negotiations only every 3 years since those area contracts which it has negotiated are 6-year contracts with 3-year reopenings for wage modifications. The Drivers Council neither administers nor enforces these contracts since it is not in existence during the period between conventions. Problems arising during the interim period are handled by the chairman of the Southern Conference and the testimony shows that the references to the Southern Drivers Council in the 1955 contracts were inadvertent and were intended to desig- nate the Southern Conference, the actual party to the contracts.' The Drivers Council has no constitution or bylaws, nor is it char- tered by the International or by the Southern Conference. It has no elected or appointed officers, but is composed of designated officers of the motor carrier locals. It has no separate treasury or funds, each local paying the expenses of its delegate and the Southern Conference paying for the meeting rooms and incidental costs of the annual meetings. The Drivers Council has no liabilities or assets, it collects no revenues and disburses no money. No per capita allocation of dues is received by the Drivers Council, and its members receive no salary from the Council. It does not receive employees into membership nor does it participate in organizational campaigns. As the Drivers Council has no separate existence or identity apart from the Southern Conference, we find that it is not a separate labor organization within the meaning of the Act but is the negotiating arm of the Southern Conference.7 We therefore find that the Drivers Council is not required to comply with the filing requirements of the Act, and we deny the Employer's motion to dismiss the petition. 6 The record also establishes that these contracts were changed in the 1958 negotiations to designate the Southern Conference and not the Drivers Council. 7 I?. II. Osbrink, et al., 106 NLRII 16 ; Grand Central Aircraft Co., Inc., 106 NLRB 358 ; Pacific Maritime Association, 110 NLRB 1647, footnote 7; General Shoe Corporation, etc., 120 NLRB 911. Our dissenting colleague refuses to acknowledge this distinction and ignores our finding, fully supported by uncontradicted testimony, that the Drivers Council acts only as the agent of the Southern Conference. The dissent also ignores the un- contradicted testimony of the chairman of the Southern Conference that the words "Southern States Drivers Council" were used in contracts and other documents where the words "Southern Conference" were intended. It is on the basis of this inadvertence that most of the findings of our dissenting colleague rest. As such agent, the Southern States Drivers Council no more assumed a separate identity and existence than does the policy committee, the negotiating committee, or the grievance committee of a local labor organization, each of which may meet and deal with employers. If the contention is advanced that each of such committees must comply with the filing requirements, it is a novel one. Member Jenkins also notes that the dissent also ignores the fact that the Drivers Council, as distinguished from the Southern Conference, is limited to the motor freight area and would play no part in bargaining negotiations between the Petitioner and the Employer herein, nor would it sign nor administer any contract resulting from such negotiations. 1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. International Brotherhood of Teamsters , Chauffeurs , Ware- housemen & Helpers of America, herein referred to as the Team- sters, and its Local No. 327 are labor organizations claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Sec- tion 9 ( c) (1) and Section 2(6) and (7) of the Act. 4. The appropriate units : In Case No. 10-RC-3907, the Petitioner amended its unit request to represent all transport drivers at the Employer 's Nashville, Tennessee , 63d Avenue establishment , department No. 25, and at the Employer 's Fayetteville , Tennessee , establishment , excluding all other employees . In Case No . 10-RC-3914 , the Petitioner amended its unit to seek all warehousemen at the Employer 's general retail warehouse No. 539, known as the Craighead installation , with the usual exclusions and all other employees. The Employer contends that, because of integrated operations and centralized control , the appropriate unit should consist of the production and maintenance employees in all its 31 plants in the Southern Shoe Division , or in any event , of its production and maintenance employees in all 10 plants in the Nashville area. The issue whether the Employer 's operations require a finding that only a divisionwide unit is appropriate has been before the Board on several occasions . A recent decision issued in May 1957 held that, although a divisionvide -unit may be appropriate , it is not the only appropriate unit." In that case , the Board also held, con- trary to the Employer's contentions , that the Nashville area plants are not so integrated as to obliterate the identity of the separate plants in that area . In numerous representation cases, the Board has held that a single plant in the Southern Shoe Division may also be appropriate.' Case No. 10-RC-3907 As indicated above, Petitioner in this case seeks to represent trans- port drivers at two of the Employer's installations, one at the 63d Avenue warehouse in Nashville and the other at the Employer's plant at Fayetteville, Tennessee, some 80 miles distant. Although these drivers are engaged in the same kind of truckdriving and do 8 General Shoe Corporation, 117 NLRB 1704. 9 See General Shoe Corporation, supra, cases enumerated in footnote 5, and also 10-RC-3228; 10-RC-3314; 10-RC-3396; 10-RC-3789; 10-RC-1000; 10-RC-1021 ; 10- RC-1522 (unpublished) ; and 92 NLRB 136; and Southern Sole Company, an operating division of General Shoe Corporation, 76 NLRB 303. GENERAL SHOE CORPORATION 1623 the same type of work generally and work under similar conditions, they are under separate supervision, and there appears to be no basis in the record for combining these drivers of the two installations into one unit rather than any other combinations of drivers from other plants in the Nashville area. We therefore find that a unit limited to these transport drivers is not appropriate. There is no history of collective bargaining. We perceive no reason, however, why we cannot consider a unit of transport drivers limited to each plant.10 The 63d Avenue plant is essentially a warehouse, with its own superintendent. There are 28 regular truckdrivers at this warehouse, all engaged in truckdriving in the city and out of town. The evidence shows these men are paid from a separate payroll marked "Transport Drivers Payroll, De- partment 25." It appears that in order to effectuate the Employer's policy of a guaranteed annual wage for all employees, the drivers are assigned in slack time to help out in other classifications in the ware- house, such as stock clerks or order fillers. However, with one or two rare exceptions, the transport drivers spend only from 2 to 4 weeks a year in work other than driving. They also help load and unload trucks as incidental to their driving duties. Seniority is plantwide, and in layoffs, warehouse employees who are qualified drivers and drivers who can fill in as warehouse workers may be rolled back into jobs on the basis of their seniority. We find that the regularly assigned truckdrivers at the 63d Avenue warehouse con- stitute an identifiable, homogeneous group, such as the Board has frequently held may constitute a separate appropriate unit. As we are administratively advised that the Petitioner has made a proper showing in the group, we shall direct a separate election for the truckdrivers at this warehouse.11 At the Fayetteville plant, there are 10 regular truckdrivers and 2 regularly assigned drivers who form a pool, driving wherever and whenever needed for special trips. The evidence indicates that these drivers do the same work, performed under similar conditions, as those at the 63d Avenue plant. The Employer's objections to any proposed unit of truckdrivers includes, in addition to its contentions of integration, the further 10 Although the unit sought by the Petitioner for the combined transportation drivers at Nashville and Fayetteville is inappropriate , we shall not dismiss the petition in this case on the ground that the Petitioner is apparently willing to accept a separate unit of drivers at each plant involved. u The Employer calls attention in its brief to our decision in Case No . 10-RC-2513 (unpublished ) involving this same warehouse , wherein we dismissed a petition by the Petitioner for a unit of warehouse employees , material handlers , and plant clerical em- ployees. In that ease , however , the petition requested a plantwide unit, and the petition was dismissed on the ground that Petitioner actually sought only a segment of such unit. See General Shoe Corporation , 117 NLRB 1704, 1707, footnote 8. In the instant case, the Petitioner is seeking a truckdrivers unit only, a type of unit which the Board has customarily granted. 1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contention that there should be included other classifications such as forklift operators, conveyor system operators, loaders and unloaders, and stock clerks who sometimes work side by side with the truck- drivers when the latter do warehouse work in slack seasons. As these employees are not regularly assigned truckdrivers, we find no merit in this contention. We find that the regularly assigned truckdrivers at the Fayette- ville plant constitute an identifiable, homogeneous, and functionally distinct group and that they may constitute a separate appropriate unit. As we are administratively advised that the Petitioner has made a proper showing of interest among these drivers, we shall direct an election for this group." Case No. 10-RC-3914 In Case No. 10-RC-3914, the Petitioner amended its unit request to cover all warehousemen at the Employer's general retail warehouse No. 539, also known as the Craighead Nashville, Tennessee, installa- tion. In addition to its contention of integration of this facility with other plants in the Nashville area, the Employer emphasizes the fact that conditions of work in the Nashville area plants are uniform, all employees receive the same benefits, and that there is substantial interchange between departments, plants, and sections among the Nashville plants. As to integration, we have held, as indicated above, that the Nashville plants are not so integrated as to preclude a finding that a single-plant unit is also appropriate. Furthermore, the evidence shows that the transfers of facilities in the Nashville area were permanent and made for the convenience of the Employer's operations. Although in the last 10 years there were 647 transfers of employees among the 10 plants in the Nashville area and 139 transfers in the last 2 years, there were only 28 transfers out of the Craighead plant, herein involved. As we have frequently held that single-plant units of the Employer are appropriate, we shall also direct an election in this plant." Accordingly, we find that the following employees constitute sep- arate units 14 appropriate for collective bargaining within the mean- ing of Section 9(b) of the Act." 1' Cf. Endicott Johnson Corporation, 116 NLRB 446 , where the Board denied a unit of truckdrivers on the ground that they spent less than half their time driving and a large portion of their time in production and garage work ; also Richmond Engineering Com- pa.nV, Inc., 108 NLRB 1659, where the drivers moved to permanent production work. " See General Shoe Corporation, 114 NLRB 381. L+ There is no labor union other than the Petitioner seeking to represent the separate units herein found appropriate. 11 The Board has considered the telegrams from the attorneys for the Employer dated April 18, 1958, and February 2, 1959, alleging that the composition of the units herein involved has been changed since the date of the hearing, and requesting that the record be reopened. No offer of proof or evidence has been submitted in support of these allegations. We therefore rest our decision on the record at the hearing, and the Employer 's request is hereby denied. GENERAL SHOE CORPORATION 1625 1. All transport drivers at the Employer's 63d Avenue establish- ment at Nashville, Tennessee, excluding all other employees, guards, and all supervisors as defined in the Act. 2. All transport drivers at the Employer's Fayetteville, Tennessee, plant, excluding all other employees, guards, and all supervisors as defined in the Act. 3. All warehousemen at the Employer's general retail warehouse No. 539, also known as the Craighead installation at Nashville, Tennessee, excluding office clericals,16 all other employees, guards, and all supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] MEMBER RODGERS, dissenting: The sole question is whether the Teamsters' Southern States Drivers Council l7 is a labor organization which must comply with the filing requirements of the Act. According to Section 2(5) of the Act, the term "labor organization" "means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the pur- pose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work."' (Emphasis supplied.) The record therefore places this Council squarely within the ambit of Section 2(b). The record shows that this Council was patterned after, and functions like, another organization-The Teamsters' Central States Drivers Council-which has complied with the filing requirements of the Act, and which, in another proceeding, admitted its status as a labor organization within the meaning of Section 2(5).18 The record shows that, like the latter organization, the purpose of this Council is to bring about uniformity in the terms of labor. contracts with employers.19 The record shows that the mem- bership of this Council consists of delegates from various local unions of employees. The record shows that, in pursuance of the purposes for which it is organized, this Council addressed letters to employers bearing the signatures of both a "chairman" and a 16 At the hearing, the Petitioner amended its unit request to include all plant clericals. 17 in its brief, the Petitioner asserts that the name "Southern States Drivers Council" is a misnomer for the "Freight Division" of the Southern Conference of Teamsters. The record shows a series of acts committed by, and in the name of, the "Southern States Drivers Council." The most recent of these occurred, so far as the record reveals, on January 15, 1958. In any case, there is no dispute as to the existence, past as well as present, of the group designated, at least sometimes, as "Southern States Drivers Council." 1B See A.C.E. Transportation Co., Inc., 120 NLRB 1103, wherein the complaint alleged, the answer admitted, and the Board found that the Teamsters' Central States Drivers Council was a labor organization within the meaning of the Act. 10 A second, subsidiary purpose of Southern States Drivers Council is, "so far as possible," to conform labor contracts within its geographical area with those within the area jurisdiction of Central States Drivers Council. 1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Secretary"; that in such letters, this Council referred to itself as an affiliate of the Teamsters' International Union, and as the "bar- gaining agent" for the employers' employees. The record shows that in such letters this Council requested revisions and changes in the terms of existing bargaining agreements, including revisions and changes in hourly rates of pay, hours, and overtime provisions, pension funds, and health and welfare contributions; and that, in such letters, this Council designated a specific date, time, and place for the "commencement of negotiations" bearing upon the requested revisions and changes. The record shows that this Council has considered, and drafted, proposals with respect to labor contracts, and has submitted such proposals to employers. The record shows that this Council has met with employer representatives, and has discussed, and negotiated with them, various proposals and counterproposals with respect to labor contracts. The record shows that this Council has been a party to, and has executed, a number of labor contracts with em- ployers .20 And, finally, the record shows that this Council was, under the terms of the foregoing contracts, given the power to authorize strikes and work stoppages, and was given the duty of making an "immediate effort to terminate any strike or stoppage of work which is not authorized by it." (Emphasis supplied.) The foregoing record evidence establishes without peradventure that this Council squarely meets the definition set forth in Sec- tion 2(5). My colleagues do not dispute this fact. Rather, they ignore it. Moreover, it appears to me that my colleagues' decision is predicated at least in part upon considerations which are either immaterial to the point at issue or are factually unsound. Im- material is the fact that the Council has "no funds or assets," and that it "collects no revenues and disburses no money." My colleagues state that this Council "has no elected or appointed officers," and "neither administers nor enforces these contracts since it is not in existence during the period between conventions." Both such statements are erroneous zi 20 Contrary to my colleagues' statement that only "two" such contracts were intro- duced into evidence, it appears that in fact four such contracts were introduced. Moreover, there were introduced in evidence three separate documents, each entitled "Memorandum of Agreement" and dated January 15, 1958, which amended the terms of existing labor contracts. This Council was a party to, and executed, such memoranda agreements. 21 As for the first statement, the record shows various ministerial actions taken by this Council's "Secretary" and by its "Chairman." In addition, various labor contracts to which it was a party refer to "A properly designated officer of the Southern States Drivers Council," who, by the contracts' provisions, is, if requested, required to "declare and advise" whether the Council has "authorized any strike or stoppage of work." As for the second point, as indicated in the text above and in the preceding paragraph of this footnote, various provisions in contracts to which this Council was a party con- template, during the contracts' terms, various acts by the Council with respect to strikes and work stoppages. Moreover, the statement that the Council "is not in existence between conventions". overlooks, as is indicated in the text below, the nature of a union's bargaining relationship with employers. DISTRICT'50, UNITED MINE WORKERS OF AMERICA 1627 My colleagues also state that the Council "meets in negotiations only every 3 years since those area contracts which it has negotiated are 6-year contracts with 3-year reopenings for wage modifications." This statement, even aside from the question of its germaneness, ignores the realities of the collective-bargaining process. For the fact is that bargaining negotiations do not begin and end simul- taneously with their inception; indeed, as the experience of this Board demonstrates, they often continue over lengthy periods of time. In reaching their conclusion herein, my colleagues are overlooking a well-established principle, followed by both this Board and the courts, to the effect that anybody which has the attributes, and exercises the functions, set forth in Section 2(5), is a labor or- ganization even though it has no formal structure?' I cannot ignore this rule, and I cannot ignore the specific language of the statute. Accordingly, I do not join in my colleagues' ruling, and would dis- miss the petitions. MEMBER BEAN took no part in the consideration of the above Decision and Direction of Elections. 2 See, for example, N.L.R.B. v. Kennametal, Inc., 182 F . 2d 817 ( C.A. 3) ; United Shoe Workers of America, C.I.O. (Perry Norvell Company ), 80 NLRB 225 , 244; Smith Victory Corporation, 90 NLRB 2089 ; Metallic Building Company , 98 NLRB 386 , 887, 395, and cases cited therein ; Gemsco, Inc., 111 NLRB 82; Building d Construction Trades Council of Boston, AFL-CIO (J. J. Reddington Electric Service Co.), 119 NLRB 1816; Endicott Johnson Corporation, 117 NLRB 1886. District 50, United Mine Workers of America [The Herbert Chemical Company] and William L. Herman . Case No. 9-CB- 405. February 27, 1959 DECISION AND ORDER On November 18, 1958, Trial Examiner C. W. Whittemore 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 copy of the Intermediate Report attached hereto. The Trial Exam- iner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recom- mended that these allegations of the complaint be dismissed. There- after, the General Counsel filed exceptions to the Intermediate Report and 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- 122 NLRB No. 190.