Miller Bros., Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1974

210 N.L.R.B. 127 (N.L.R.B. 1974)

MILLER BROS., INC. 127
Miller Bros., Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local No. 17. Case 27-RM-417
April 18, 1974
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Douglas R.
Hjelle . Following the hearing and pursuant to
Section 102 .67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, and by direction of
the Regional Director for Region 27, this case was
transferred to the National Labor Relations Board
for decision . Thereafter, the Employer and the Union
filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
The Board has considered the entire record in this
case and makes the following findings:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
The Employer, an intrastate truckline, petitioned
for an election to be conducted among its employees
in a unit of truckdrivers and casual employees at its
facilities in six Colorado cities. Local 17 contends
that this single-employer multiterminal unit is inap-
propriate because the Employer is a member of a
national multiemployer/multiunion bargaining unit
as a result of its adoption in 1970 of the National
Master Freight Agreement and the Western States
Area Pick-up Delivery Local Cartage and Dock
Workers Supplemental Agreement. Local 17 specifi-
cally points to article 2, section 4, of the National
Master Freight Agreement which purports to estab-
lish such multiemployer/multiunion unit, and article
31 of that agreement which declares that all parties
agree to become part of the multiemployer/multiun-
ion bargaining unit and to remain in such unit if a
renewed or modified agreement is negotiated.'
Accordingly, the Union argues, the petition should
be dismissed because the only appropriate unit
would be the national multiemployer/multiunion
unit and the new contract negotiated in July 1973 by
the multiemployer/multiunion unit constitutes a bar
to the Employer's petition since that contract will not
expire until March 31, 1976.2 The Employer argues
that it never became part of a multiemployer unit,
has never participated in negotiations on a national
basis, and has only bargained on an individual basis
with Local 17. We find it unnecessary to determine
whether the language of the 1970 National Master
Freight Agreement should be given the interpretation
suggested by Local 17 since, in any event, we would
find that even if the Employer had at one time bound
itself thereby to a multiemployer/multiunion bar-
gaining unit, it effectively withdrew from such a unit
and that the parties thereafter bargained only with
respect to the unit composed of the Employer's
employees.
On March 13, 1973, the Union requested negotia-
tions on revisions to the 1970 contract. The Employ-
er responded on March 21 by invoking the 60-day
notice provision of article 39, section 1, of the 1970
agreement , thereby notifying the Union of its
intention to terminate the agreement as of June 30,
1973. The Union's secretary -treasurer, Henry Estra-
da, testified that the Employer's invocation of article
39, section 1, was the only available procedure that
he was aware of by which the Employer could have
withdrawn from the multiemployer/multiunion unit.
In a subsequent meeting between the Employer
and Local 17 in May 1973, the Employer declared
that it could no longer live with the National Master
Freight Agreement and emphasized the need to
commence bargaining on a new contract without
waiting for a new national agreement to be reached.
Thereafter, the parties held three bargaining sessions
1 These provisions in pertinent part read:
Article 2, Section 4
The employees, unions, employers and associations covered under this
Master Agreement and the various Supplements thereto shall constitute
one bargaining unit ... and the printing . in separate Agreements
is not intended to create separate bargaining units
Accordingly, the Associations and employers, parties to this Agree-
ment, acknowledge that they constitute a single National multi-
employer collective bargaining unit ... .
Article 31
The parties further agree to participate in joint negotiations of any
modification or renewal of this National Master Agreement and
Supplements thereto and to remain a part of the multi-employer, multi-
union bargaining unit set forth in such renewed Agreement and
Supplements.
2 The Union does not, however, contend that it does not seek to
represent the Employers employees in a separate unit if the Board rejects
the Union's position.
210 NLRB No. 26
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in August 1973 at which their discussions were
restricted to this single-employer unit. Local 17 never
claimed at any of these sessions that the Employer
was part of a multiemployer bargaining unit nor that
it considered the Employer to be bound by the
provisions of the National Master Freight Agreement
and Supplements which had been negotiated in July
1973 for the multiemployer/multiunion unit. Rather,
the union representatives merely stated that they
"hoped" that the Employer would sign the 1973
National Master Freight Agreement when they
presented the new national contract to the Employer.
The individual nature of these negotiations was
further evidenced by the negotiations over the
Employer's claim of financial hardship as the reason
for its inability to adopt the terms of the national
contracts; as a result, the Employer allowed an audit
of its books by Local 17's accountant to substantiate
its claim.
In our view, no matter what effect we might
otherwise give to the unit clauses in the 1970
agreement, the actions of Local 17 and the Employer
here in the course of the 1973 negotiations were
inconsistent with the concept of multiemployer/mul-
tiunion bargaining and evidenced an intent on their
part to pursue collective bargaining on a local basis
without regard to any further agreement or practices
with respect to the larger unit. Accordingly, we find
that the National Master Freight Agreement is not a
bar to this proceeding.
4. In view of the conclusion above, we find that
the single-employer multiterminal unit requested in
the Employer's petition is appropriate.
The Employer contends that the unit should
include all of its truckdrivers and "casual employ-
ees." The Union refers the Board to the 1970
contract to determine which employees should be
considered regular part -time employees under Board
standards.3 The casual employees regularly perform
the same work as the truckdrivers at four of the
Employer's six terminals and consistently work from
8 to 25 hours per week. Additionally, when there are
fluctuations in the workload , these employees remain
on an on-call basis . Thus, although denominated
casual employees in the Employer 's petition, we find
that these individuals are regular part -time employ-
ees, and shall include them in the appropriate 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 and regular part-time employees
of Miller Bros., Inc. located at Denver, Greeley,
Fort Collins, Loveland, Longmont , and Estes
Park, Colorado, but excluding all office clerical
employees , salesmen , guards , professional em-
ployees, mechanics, and supervisors as defined by
the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
3 Examination of the 1970 contract leaves us with insufficient basis for to their meaning and application.
relying on its ambiguous terms, in the absence of explanatory testimony as