Pacific Intermountain Express Co.

National Labor Relations Board - Board Decisions

Jan 3, 1964

145 N.L.R.B. 805 (N.L.R.B. 1964)

PACIFIC INTERMOUNTAIN EXPRESS CO. 805
called,5 and the small proportion of employees who attended; 6 (2)
the Petitioner was instrumental in the efforts to terminate the Asso-
ciation's status as a labor organization; and (3) in voting to dissolve
the Association, the members who attended the meeting seem to have
been motivated by a desire to rid themselves of the recently executed
contract between the Association and the Employer. Accordingly,
we find that, for contract-bar purposes, the Association is not defunct.
As the petition was filed more than 90 days before the expiration
date of the current contract between the Employer and the Associa-
tion, we find that the contract is a bar to the petition, and we shall
therefore dismiss the petition.
[The Board dismissed the instant petition.]
6 Cf. Wm. Wolf Bakery, Inc., 122 NLRB 1163.
0In the somewhat analogous " schism" cases, the Board has given substantial weight to
such factors in deciding whether there had been a schism in the incumbent union and the
existing contract was therefore removed as a bar . Thus, in Hershey Chocolate Corpora-
tion, supra, at 908, the Board stated:
[W]e must be convinced that the employees involved have had an opportunity to
exercise their judgment on the merits of the conflict . We believe that this condition
can best be satisfied at an open meeting called, without regard to any constitutional
restrictions , but with due notice to the members in the unit, for the purpose of taking
disaffiliation action ... .
Pacific Intermountain Express Co . and Office Employees Inter-
national Union, Local 29, AFL-CIO, Petitioner . Case No.
tO-RC-3633. January 3, 1964
DECISION AND ORDER CLARIFYING CERTIFICATION
OF REPRESENTATIVE
On August 18, 1958, after an election conducted pursuant to an
agreement for consent election, the Regional Director for the Twen-
tieth Region issued a certification of representative in which he cer-
tified the Petitioner as the collective-bargaining representative for a
unit of the following employees :
All office clerical employees employed at the Employer's Oakland,
California, general office, excluding all other employees, profes-
sional employees, guards, and supervisors as defined in the Act.
On July 5,1963, the Petitioner filed a motion for clarification of the
unit, alleging, in effect, that subsequent to its certification the Em-
ployer, Pacific Intermountain Express Co. (herein called PIE), ac-
quired control over the operation of National Carloading Corpora-
tion (herein called National), and that upon acquisition of the said
National Carloading Corporation transferred the office employees of
that company into the general office of PIE at Oakland, California,
145 NLRB No. 76.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where these employees are presently performing general office work
for both PIE and National within the scope of Petitioner's contract
with PIE. By its motion, Petitioner seeks to include these trans-
ferred and other employees in its certified unit. The Brotherhood
of Railway and Steamship Clerks, AFL-CIO, and its Local Lodge
No. 802 (herein called Railway Clerks), intervened on the basis of
their contract with National Carloading Corporation covering certain
of the office clerical employees of that company.
On July 19, 1963, the Acting Regional Director for the Twentieth
Region directed that a hearing be held to take evidence on the issues
raised by the Petitioner's motion. A hearing was held before Hear-
ing Officer David W. Leahy on August 5, 1963. 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
Upon the entire record in the case, the Board finds :
PIE, an interline trucking organization, because of Interstate Com-
merce regulations is restricted from engaging in the freight-forward-
ing business. In order to carry on its extensive operations, including
a freight-forwarding operation, it has acquired a number of wholly
owned subsidiary corporations, including freight-forwarding com-
panies. In 1962, PIE acquired all of the stock of National, another
freight forwarder. Since the acquisition, National has continued its
operations as a freight forwarder but as a wholly owned subsidiary
of PIE.
At the time of the acquisition, National maintained clerical offices
in New York, New York, Kansas City, Missouri, Chicago, Illinois,
and Oakland, California. Most of these office employees were covered
by a contract then in existence between National and the Railway
Clerks, but there was a small number of office clericals in National's
employ who were unrepresented at the time of PIE's acquisition of
National. PIE, adhering to its former practice when subsidiaries
were acquired, transferred all of the office clerical functions from
the former National offices to PIE's general office at Oakland, Cali-
fornia. In addition, PIE also assumed several office functions that
were formerly performed for National on a contract basis by outside
firms, such as the accounts receivable operation which had been per-
formed by a Chicago, Illinois, bank. At the time of the consolidation
of the office functions, PIE notified all National office employees whose
PACIFIC INTERMOUNTAIN EXPRESS CO. 807
jobs were being transferred that they had the right to transfer to the
Oakland office if they so desired. Approximately 50 percent of the
National employees transferred. New employees were hired on the
PIE payroll where necessary because of refusal to transfer or because
of the assumption of new job functions. After the acquisition, all
National operations, including personnel and labor relations matters,
were brought within the administrative direction and control of PIE's
executive and administrative organization. Since the acquisition and
transfer, PIE has continued to deal with and recognize the Railway
Clerks as the representative of those office employees on National's
payroll who fall within the coverage of the Railway Clerk's contract
in existence at the time of the transfers.
The Petitioner contends that in view of PIE's past practice of
bringing office employees of newly acquired subsidiary corporations
within the coverage of Petitioner's contract and the fact that the work
of the National and PIE office employees is performed under com-
mon supervision, is interrelated and performed without delineation
as to the particular subsidiary involved, and is performed with a
high ratio of employee interchange in relation to job functions, that
the National employees are within the scope of and an accretion to
the Petitioner's certified unit. The Railway Clerks contends that
these employees are covered by its contract, are still employees of
National and, as such, do not belong in the Petitioner's unit. The
Employer takes no position between the positions of the respective
Unions.
The record shows, as noted above, that subsequent to the acquisition
of National, all of the office clerical functions of National were trans-
ferred to PIE's Oakland general office. The record also shows that
those employees who transferred to Oakland (whether represented or-
unrepresented) as well as those hired to replace those employees who
refused to transfer, although employed by National, are presently in--
terspersed among the PIE office clerical employees in both of the large
office areas located on the first and second floors of PIE's Clay Street
office building. With but one or two exceptions, all of these office
employees, including those employees assigned to National work, are
under the direction and supervision of PIE supervisors, and even in
those exceptional cases where National supervisors were retained as
such, they in turn possess supervisory authority over PIE employees.
All of the office supervisors, regardless of corporate entity, are ulti-
mately responsible to PIE's vice president of finance.
The record also shows that in keeping with the Railway Clerk's
contract PIE has kept as much of the work as possible segregated be-
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tween PIE and National matters. In the freight claims department,
the largest single section wherein there is a clear or reasonably clear
line of demarcation between PIE operations and those operations
limited to National, the work of receiving customers' claims for dam-
ages to freight handled by one of the forwarding corporations has
remained separated to a limited extent. Since National publicly oper-
ates as a separate corporate entity, claims for freight damage are
necessarily addressed to it directly with any one of the nine National
claim investigators picking up this work while the remaining in-
vestigators are limited to PIE claims work. As claims are received,
the investigators process and investigate, record, and pay or decline
to pay freight loss and damage claims. In carrying out this work,
however, they are supervised by supervisors carried on the PIE pay-
roll, and although they have full authority to settle claims up to a
certain dollar value without further approval, claims above this set
amount can only be settled with the approval of a PIE supervisor,
regardless of whether the claim arose against National or PIE. In
addition, although this dichotomy of work sources exists, the record
shows that all claims investigators carry on their work and are located
side by side in a large open office area on the first floor of the Clay
Street building. Further, the record shows that although the in-
vestigators act on behalf of different subsidiaries, their auxiliary help
such as the dictaphone operators and the typists, all of whom are car-
ried on PIE's payroll, work interchangeably for the various investiga-
tors without regard to the corporate structures involved.
The record also shows other examples where limited segregation of
the work has been maintained. However, even in these instances, the
record shows that in most of these situations the division has been
one of form rather than substance. Thus, for example, the check
sorters normally receive checks directed to the individual corporations,
but where the daily load is heavier for one corporation than the other,
or the National girl is off ill, PIE clericals will pick up the additional
load of performing sorting functions for National. In the delinquent
accounts receivable department, a supervisor on the National payroll
supervises approximately seven PIE and National employees who
work on National and PIE work interchangeably. Again, in the
interlines payable section, another National supervisor supervises both
PIE and National employees in work performed interchangeably for
PIE and National.
The Petitioner, as noted above, contends that as a result of the
integration which has taken place since the acquisition, the only
appropriate unit is one covering all of the office clerical employees
located at the Employer's Clay Street office. Clearly, a number of
PACIFIC INTERMOUNTAIN EXPRESS CO. 809
factors listed above, such as centralized control of labor relations,
common supervision, and integration and interchange of employees
and job functions, support a finding that a single unit of office em-
ployees is appropriate. As the facts outlined above show, the former
National units are no longer capable of being identified, but have, as
a result of the acquisition and transfers, ceased to exist. All jobs
were transferred to the Oakland general offices, and of the approxi-
mately 55 National employees affected by the acquisition, only 25
or 30 employees followed their work, the remaining jobs being filled
by new hires from the Oakland area. Consequently, the Railway
Clerks seeks no well-defined bargaining unit or other separate identi-
fiable group of employees, but a shifting group whose only common
bond is membership in the same Union. Thus, it would appear that
the current relations between the Employer and the Railway Clerks
emanate, not from the previous long-established contract bargaining
unit, but rather from a relationship presently reduced to a member-
only basis, membership for the most part being determined not by job
function, but rather by whether the employee, or the employee's
predecessor in the position, worked for National prior to the transfer.
In these circumstances, we find that any separate bargaining that has
occurred since the acquisition is entitled to little weight in determin-
ing whether or not an overall unit of office clerical employees is
appropriate.'
We find that on the basis of the factual circumstances in this case
the office employees of National Carloading Corporation who were
transferred into the Employer's general offices at Oakland, California,
as well as those newly hired to fill jobs of those who did not transfer,
accreted to the general office unit. The factors leading us to this
result are the physical, functional, and administrative integration of
these employees with the employees of the Employer, their common
duties and supervision, their identity of work conditions and close
community of interests, and their integrated role in the operation of
the Employer's general office at Oakland. Accordingly, we shall
amend the description of Petitioner's certified unit to include specifi-
cally therein the employees of National Carloading Corporation, em-
ployed at the Employer's Oakland, California, general office.2
[The Board clarified the certification heretofore issued in the above-
captioned proceeding by specifically including all office employees
employed by National Carloading Corporation at the Clay Street
general offices, Oakland, California, of Pacific Intermountain Express
Company.]
' Continental Can Company, Inc., 127 NLRB 286.
2 Granite City Steel Company, 137 NLRB 209.