Hazard Express

National Labor Relations Board - Board Decisions

Oct 30, 1997

324 N.L.R.B. 989 (N.L.R.B. 1997)

989
324 NLRB No. 158
HAZARD EXPRESS, INC.
Hazard Express, Inc. and Teamsters Local Union
No. 651, International Brotherhood of Team-
sters, AFL–CIO, Petitioner. Case 9–RC–16971
October 30, 1997
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
The National Labor Relations Board has considered
the Employer’s request for review of the Regional Di-
rector’s Decision and Direction of Election (pertinent
portions of which are attached). The request for review
is denied as it raises no substantial issues warranting
review. The Employer’s request for a stay of the elec-
tion also is denied.
It is well settled that a petitioned-for employerwide
unit is presumptively appropriate. Jackson’s Liquors,
208 NLRB 807 (1974). As found by the Regional Di-
rector, the wage rates for all similarly classified em-
ployees are essentially the same, labor relations poli-
cies are centrally established and administered, and all
benefits are identical. Louisville drivers collect freight
from the area and return it to the facility, where they
load it on trailers for pickup by the Hazard and Lex-
ington drivers. The facts that Louisville drivers pick up
freight and return to their facility, but do not deliver
(unlike the other drivers) and that there are no dock-
workers or dispatcher at Louisville are insufficient to
rebut the employerwide presumption. Indeed, the ab-
sence of any management or supervisor at Louisville
weighs in favor of including the facility in the unit.
The Employer cites Bowie Hall Trucking, 290 NLRB
41 (1988), in support of its position that Louisville
drivers should be excluded from the unit. However, in
Bowie, supra, the petitioner sought a single-facility
unit. The single-facility presumption is inapplicable
when a petition is for a multifacility unit, as here.
NLRB v. Carson Cable TV, 795 F.2d 879, 886–887
(9th Cir. 1986); Capital Coors Co., 309 NLRB 322 fn.
1 (1992). In addition, the Employer does not argue that
only a single-facility unit is appropriate. For these rea-
sons, we deny the request for review.
APPENDIX
REGIONAL DIRECTOR’S DECISION AND
DIRECTION
The Employer, a corporation, is engaged in the transpor-
tation of freight from facilities located in Hazard, Lexington,
and Louisville, Kentucky, where it employs approximately
38 employees in the unit found appropriate. There is no his-
tory of collective bargaining affecting any of the employees
involved in this proceeding.
The Petitioner seeks to represent an employerwide unit
comprised of all full-time and regular part-time drivers,
dockworkers, and helpers employed by the Employer at its
facilities located in Hazard, Lexington, and Louisville, Ken-
tucky, excluding all office clerical employees and all profes-
sional employees, guards and supervisors as defined in the
Act. The Employer generally agrees with the composition of
the unit. However, contrary to the Petitioner, the Employer
contends that the scope of the unit should not include its
Louisville, Kentucky facility. The parties also disagree over
the unit placement of the Hazard dispatcher, Steve Napier,
and the Lexington dispatcher, Thomas Newton, whom the
Petitioner, contrary to the Employer, would exclude from the
unit as supervisors within the meaning of Section 2(11) of
the Act. The Employer does not employ a dispatcher in its
Louisville operation.
Unit Scope
The Employer is a licensed ‘‘less than trailer load’’ (LTL)
carrier operating primarily in Eastern Kentucky. The Em-
ployer’s main terminal and corporate offices are located in
Hazard, Kentucky. The Employer also operates terminals in
Lexington and Louisville, Kentucky. The Employer’s busi-
ness consists of picking up and delivering freight to various
customers throughout Eastern Kentucky. The Employer re-
ceives freight at its docks in Hazard and Lexington, Ken-
tucky, which it picks up from customers or which is deliv-
ered by other interstate transportation companies. The freight
is broken down and loaded on the Employer’s trailers by
dock employees, who are occasionally assisted by drivers.
The freight is then delivered to customers from the Hazard
and Lexington terminals by drivers who are assigned specific
routes. On their routes, the Hazard and Lexington drivers
pick up freight from customers and return it to the docks for
shipment to its final destination by the Employer or other
carriers. The Employer employs 22 drivers and dock employ-
ees at Hazard and 14 at Lexington, some of whom, referred
to as combination employees, perform both driving duties
and dock work. If employees have a commercial driver’s li-
cense, they receive the same hourly rate of pay regardless of
whether they are classified as dockworkers or drivers. All
employees receive the same benefits.
Contrary to the Petitioner, the Employer would exclude the
employees who work in its Louisville operation from the
unit. The Employer maintains that its Louisville operation
may have to be closed in the near future and, in any event,
the Louisville based employees do not share a sufficient
community of interest with its Hazard and Lexington drivers
and dock employees to warrant their inclusion in the same
unit.
The Employer has maintained a small operation in Louis-
ville in excess of 40 years. The record discloses that two
long-term Louisville drivers left the Employer in late 1996
and the Employer has encountered some difficulty in replac-
ing them. Indeed, there has been substantial turnover among
the Louisville drivers since January 1997 and the record dis-
closes that the Employer has hired five or six drivers for its
Louisville operation since that date. The two current drivers
are relatively new, having been employed for less than 90
days. In addition, the long-term billing clerk at Louisville re-
cently retired and had to be replaced. At the hearing, the Em-
ployer’s secretary-treasurer, Ed Chappell, whose family owns
the Company, testified that the Employer may consider ter-
minating its Louisville operation unless it can stabilize the
work force.
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990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although the Employer has encountered recent problems
in staffing its Louisville operation, it now has a full em-
ployee complement of two drivers and a clerical employee.
The Employer is also currently seeking to employ a terminal
manager at that facility. There is no evidence that the Em-
ployer plans to terminate the Louisville operation in the near
future or has any desire to do so. To the contrary, Ed Chap-
pell testified that the Employer wanted to continue the Louis-
ville operation and increase that business.
Based on the foregoing, the entire record and the argu-
ments of the parties at the hearing and the Employer’s brief,
I find that the Employer’s contention that the Louisville driv-
ers should not be included in the unit on the ground that it
may have to close the Louisville facility lacks merit. Al-
though there has been some recent turnover among the Lou-
isville employees, the Employer now has a full employee
complement and is not seeking to sell, close, or subcontract
its Louisville operation. Rather, the Employer is attempting
to stabilize the Louisville operation, hire a terminal manager
for the facility, and increase its business in that area. The
Board has consistently held that the mere speculation as to
the uncertainty of future operations is not sufficient to dis-
miss a petition or decline to hold an election. See Canteberry
of Puerto Ratio, Inc., 225 NLRB 309 (1976); Gibson Elec-
tric, 226 NLRB 1063 (1997). Accordingly, there is no basis
for declining to include the Louisville drivers in the unit
based on the future uncertainty of that operation. Canteberry
of Puerto Rico, Inc., supra. The Employer has not cited, and
I am not aware of, any case precedent to the contrary.
Having found that there is no basis for excluding the Lou-
isville drivers because of the uncertainty of the Louisville fa-
cility’s future operations, I must determine whether these two
drivers share a sufficient community of interest with the Haz-
ard and Lexington employees to warrant their inclusion in
the unit. The record discloses that the Louisville facility is
approximately 80 miles from the Lexington terminal and 200
miles from the Hazard location. It is approximately 120
miles from the Lexington facility to the Hazard terminal. The
freight picked up by the Louisville drivers is loaded on trail-
ers and transported from Louisville to Hazard and Lexington
by drivers from those facilities. It appears that a driver from
both Hazard and Lexington makes a pickup at Louisville on
a daily basis. Moreover, there is some evidence that the Lou-
isville drivers at one time delivered freight to Lexington but
it does not appear that the current Louisville drivers make
such deliveries.
All personnel records for employees are maintained at the
Hazard facility. In addition, the payroll records are main-
tained at the Hazard office and all payroll checks, including
those for the Louisville drivers, are dispersed out of that fa-
cility. As a result of local wage rates, the Louisville drivers
are paid somewhat more than the Lexington employees who,
in turn, receive slightly more than the Hazard employees.
However, it appears from the record that the wage rate for
all similarly classified employees is essentially the same and
all employees receive identical benefits. The work of the
Louisville drivers differs somewhat from that of the Hazard
and Lexington employees. For example, the Louisville em-
ployees only pick up and apparently do not deliver freight
and they are also responsible for loading trailers which are
transported from the Louisville facility to Hazard and Lex-
ington by drivers from those facilities. Although the Louis-
ville drivers at the current time do not have any full-time im-
mediate supervision and work primarily on their own, the
Employer is in the process of attempting to hire a terminal
manager for that facility.
The cases cited by the Employer do not support its posi-
tion that the Louisville drivers should be excluded from the
unit. In Bowie Hall Trucking, supra, the Board found that the
functional integration of an employer’s operation did not
overcome the presumptive appropriateness of the single-facil-
ity unit sought by the petitioning labor organization. Here,
the Petitioner seeks a unit comprised of all similarly classi-
fied employees at the Employer’s Hazard, Lexington, and
Louisville facilities. The unit sought by the Petitioner is es-
sentially employerwide. (The Employer operates a cartage
service through a contractor in Cincinnati, Ohio, but does not
directly employ any of the employees who provide that serv-
ice.) The Employer agrees that a multifacility unit, including
its Hazard and Lexington operations, is appropriate but
would exclude its Louisville facility. Under these cir-
cumstances, Bowie Hall does not support the Employer’s po-
sition that the Louisville based drivers should be excluded
from the unit.
The other two cases relied on by the Employer in support
of its position that the Louisville drivers should be excluded
from the unit, Baltimore Transit Co. & Baltimore Coach Co.,
92 NLRB 1260 (1951), and Overnite Transportation Co.,
322 NLRB 723 (1996), are inapposite. Baltimore Transit
sought the inclusion of a number of fringe employees to an
existing unit through a self-determination election. Similarly,
Overnite Transportation involved the issue of whether me-
chanics should be included in a unit of drivers and dock-
workers. The Board merely found that the mechanics did not
share such a substantial community of interest with the driv-
ers and dockworkers to require their inclusion in the same
unit over the objection of the petitioning labor organization.
Here, the issue is not the unit placement of a different em-
ployee classification but whether the unit sought by the Peti-
tioner encompassing the same classification of employees at
the Employer’s three facilities is appropriate for the purposes
of collective bargaining. Under the circumstances, I find that
such a unit is appropriate.
Based on the foregoing, the entire record and the argu-
ments of the parties at the hearing and in the Employer’s
brief, I find that the Louisville drivers share a sufficient com-
munity of interest with the Hazard and Lexington employees
to warrant their inclusion in the same unit. In reaching this
decision, I note that the parties are in agreement that a multi-
facility unit is appropriate and the Louisville drivers appear
to have as much interest with the Hazard and Lexington em-
ployees as they have with each other. Although the work
performed by the Louisville employees differ slightly from
that of the Hazard and Lexington drivers, they are com-
pensated in the same manner and receive the same benefits.
Moreover, the labor relations policies for all of the Employ-
er’s locations are established and administered by the Chap-
pell family and the operations manager, James Fugate, who
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991HAZARD EXPRESS, INC.
hired the Louisville employees. Purity Supreme, Inc., 197
NLRB 9l5 (1972); Dan’s Star Market, 172 NLRB 1393
(1968); and Mid-West Abrasive Co., 145 NLRB 1665, 1667–
1668 (1964). Finally, the Petitioner is seeking essentially an
employerwide unit which is clearly appropriate for the pur-
poses of collective bargaining. Globe Furniture Rentals, 298
NLRB 288 (1990); New England Telephone Co., 280 NLRB
162 (1986). Accordingly, I shall include the two drivers who
work at the Employer’s Louisville facility in the unit.
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