Teamsters Local 988 (Emery Worldwide)

National Labor Relations Board - Board Decisions

Jun 10, 1991

303 N.L.R.B. 306 (N.L.R.B. 1991)

306
303 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel and the Charging Party also filed separate motions
to strike all or part of the Respondent’s exceptions and brief. The Respondent
filed an opposition to the motions. We deny the motions to strike, except as
they pertain to appendix A of the Respondent’s brief. Contrary to the asser-
tions in support of the motions, the exceptions and supporting brief sufficiently
identify the portions of the judge’s decision the Respondent claims are erro-
neous. We strike appendix A, a copy of a purported collective-bargaining
agreement reached after the hearing, because it is clearly outside the record.
2 Emery acquired Purolator in June 1987.
3 As noted by the judge, a December 6, 1989 grievance concerning a tem-
porary transfer of a Purolator employee to cover the route of an absent Emery
employee was sustained by the Joint Rail-Truck Arbitration & Texas Con-
ference Joint Transfer Cartage and Garage Grievance Committee.
4 Art. 1, Recognition, provides:
Section 1. The Company recognizes the Union as the sole and exclusive
collective bargaining agent for those job classifications hereinafter set
forth and such classifications as may hereafter be added.
Section 2. The execution of this Agreement on the part of the Company
shall cover the driver/dockmen employed by the Company at Houston,
Texas excluding, however, the classifications set forth immediately below.
The following classifications of employees are specifically excluded
from coverage of this Agreement:
(a) Confidential employees, supervisory, and professional employees
within the meaning of the Labor Management Relations Act of 1947, as
amended.
(b) Employees already covered by an existing Union Agreement. It is
the intention of the parties hereto that the aforesaid exclusions shall be
governed by the duties commonly and regularly performed by employees
and shall not depend on mere title.
(c) Dispatchers exercising independent judgement [sic] with respect to
the responsibility for directing the work or recommending hiring and fir-
ing.
(d) This agreed to Article also includes the work and additional job
classifications or duties normally assigned to the bargaining unit employ-
ees such as tow motor/fork-lift operator even though all such work is per-
formed under the driver/dockman classification.
Additional classifications or job title changes such as driver salesman, ter-
ritorial representative shall not be interpreted to mean that such jobs or
classifications fall outside of the bargaining unit.
Section 3. This Agreement shall not be applicable to those operations of
the Company where the employees are covered by a collective bargaining
agreement with a Union not signatory to this Agreement or to those em-
ployees who have not designated the Union as their collective bargaining
agent. At such time as a majority of such employees in an appropriate
bargaining unit designate the Union as their collective bargaining agent,
they shall automatically be covered by this Agreement.
Section 4. The Union and the Company agree, so that there will be no
misinterpretation at a later date, that the normal bargaining unit employ-
ees working for Emery Air Freight/Emery Worldwide is considered to be
within the bargaining unit covered by this Contract.
Teamsters Local Union No. 988, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO
and Emery Worldwide, a CF Company. Case
16–CB–3497
June 10, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On August 17, 1990, Administrative Law Judge
Wallace H. Nations issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party filed an-
swering briefs.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
As more fully detailed in the judge’s decision, prior
to April 17, 1989, the Respondent represented in sepa-
rate units and maintained separate collective-bargaining
agreements for the territorial representatives of Emery
Air Freight and the courier guards of Purolator Courier
Corporation, respectively.2 On April 17, 1989, Con-
solidated Freightways, Inc. purchased Emery and its
subsidiary Purolator. Thereafter, the name ‘‘Emery
Worldwide, a CF Company’’ was used to identify the
Emery and the Purolator terminal operations in Hous-
ton, Texas. Since then, the former Emery territorial
representatives (approximately 47 employees) and the
former Purolator courier guards (approximately 70 em-
ployees) have worn the same work uniform and per-
formed similar pickup and freight delivery work. Sepa-
rate seniority lists have been maintained for each unit,
but no employee transfers between the units have oc-
curred.3 Wages, benefits, and work rules have differed
according to the terms of the contract for each unit.
Labor relations for both units are administered by the
same Emery Worldwide representatives, and there is
common supervision. There is also some interchange
of company vehicles and customer service responsibil-
ities between the units.
The most recent contract covering the former
Purolator courier guards was effective November 2,
1988, through November 2, 1991. The most recent
contract covering the former Emery territorial rep-
resentatives was effective December 1, 1985, through
November 30, 1988, but thereafter was extended on a
day-to-day basis. In negotiations commencing in Octo-
ber 1989 for a successor contract for the former Emery
employees, the Respondent sought to cover the former
Emery territorial representatives and the former
Purolator courier guards under one agreement.
On October 2, 1989, the Respondent also filed a
grievance under article 1, Recognition, of the Emery
contract.4 The Respondent sought the application of
the extended 1985–1988 Emery contract to the former
Purolator courier guards on the ground that the oper-
ations of Emery and Purolator had been merged and
that there existed only a single Emery Worldwide unit
covering the former Emery and Purolator employees.
The Charging Party denied the grievance, citing article
1, section 2(b), of the Emery contract which excludes
from coverage those employees who are already cov-
ered by an existing agreement. Since December 7,
1989, the Respondent has demanded arbitration of that
grievance. Based on this demand for arbitration, the
307TEAMSTERS LOCAL 988 (EMERY WORLDWIDE)
Charging Party filed the charge leading to the instant
complaint.
In rejecting the Respondent’s assertion that the two
historical units have been merged into a single Emery
Worldwide unit, the judge focused on (1) the separate
seniority lists; (2) the different contracts for the units,
with different terms and conditions of employment; (3)
the lack of employee transfers between the units; and
(4) the Respondent’s December 6 filing of a grievance,
after filing the October 2 grievance involved here, in
which it contended that the units were separate and the
work of one could not be transferred to the other. The
judge then found that the Respondent’s contention that
the Emery and Purolator units had merged could not
be maintained in good faith. He therefore concluded
that the Respondent had violated Section 8(b)(1)(A)
and (3) of the Act by seeking, through bargaining and
contractual grievance-arbitration procedures, to compel
the merger of the Emery and Purolator units and by in-
sisting on the application of the Emery contract to the
merged unit. For the reasons set forth below, we find
that the Respondent Union’s conduct did not violate
the Act and we dismiss the complaint.
The judge relied on Chicago Truck Drivers (Signal
Delivery), 279 NLRB 904 (1986), and similar cases for
the general proposition that, in the absence of consent,
one party cannot lawfully force a merger of existing
units on the other party. In Signal Delivery, the Board
found that the respondent union’s insistence on the ar-
bitration of grievances seeking to merge three histori-
cally separate bargaining units violated Section
8(b)(1)(A) and (3) of the Act. These three units were
at three separate facilities and one involved a separate
employer. Thus, the proposed merger would have in-
troduced not only multifacility but also multiemployer
bargaining. In that case, the union sought to dovetail
the three separate seniority lists for the units and
through this dovetailing to accomplish a merger of the
three units into one unit. Moreover, the Board in Sig-
nal Delivery found that the union wanted to force the
merger of the units rather than obtain a declaration that
a merger had already occurred through the integration
of the employers’ operations.
Although we do not disagree with the general prop-
osition espoused by Signal Delivery and the other
cases relied on by the judge, we do not consider it ap-
plicable to the facts of this case. A critical difference
between those cases and the present case is that here
the Respondent sought arbitration to determine wheth-
er, in fact, a merger had already occurred at some time
after the Company’s terminal operations had been
combined. The Respondent’s contention that a merger
had occurred was not unreasonable, particularly in
light of the facts that the employees of both units wear
the same work uniform, perform similar work out of
the same terminals, and have common supervision. In
addition, the Respondent notes that there is an inter-
change of vehicles and customer service responsibil-
ities between the units, and labor relations for both
units are administered by the same company represent-
atives. The Respondent asserts that the only fact mili-
tating against finding a complete functional merger
prior to the filing of the grievance is the existence of
two collective-bargaining agreements with different
terms and conditions of employment. In our view,
however, the separate agreements appear to reflect the
separate operations that existed when the agreements
were negotiated. Likewise, the separate seniority lists,
relied on by the judge, can be traced to the historical
circumstance that the companies were previously sepa-
rate entities. Similarly, the Respondent’s pursuit of the
grievance filed on December 6, 1989, asserting that the
units were separate was not necessarily inconsistent
with its merger grievance. There had been no arbitra-
tion decision resolving the merger issue.
In Teamsters Local 483 (Ida Cal Freight), 289
NLRB 924 (1988), the Board dismissed a complaint
alleging that the respondent union violated Section
8(b)(4)(ii)(A). The Board concluded that the respond-
ent union’s filing of a grievance and a 301 lawsuit to
compel union representation of the owner-operators
was not unlawful, even though the owner-operators
were found to be independent contractors and not stat-
utory employees. The Board reasoned that the union’s
contention that the owner-operators were statutory em-
ployees was not unreasonable and that the union’s ac-
tions were consistent with the goal of obtaining an ad-
judication, through arbitration or court action, of the
status of the owner-operators. There also had been no
prior determination of the owner-operators’ status.
Under these circumstances, the Board concluded that
the respondent union had a legitimate object in seeking
a resolution of the issue involving the status of the
owner-operators through grievance arbitration and
through a 301 lawsuit.
Applying the analysis of Ida Cal to the facts in this
case, we similarly find that the Respondent’s grievance
and contract bargaining proposal seeking a single unit
of Emery and Purolator employees had a lawful objec-
tive. As discussed above, the Respondent’s merger
contention was not unreasonable. It also raised a bona
fide contractual issue involving the application and in-
terpretation of article 1 of the 1985–1988 Emery con-
tract. Article 1, on its face, does not explain the effect,
if any, on the scope of the unit when company oper-
ations are integrated with those of another company. In
addition, this merger issue has not been determined
through an adjudicatory process. Thus, in the absence
of any other alleged coercion, we shall dismiss the
complaint.
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The complaint is dismissed.
Tamara J. Gant, Esq., for the General Counsel.
James L. Hicks Jr., Esq., of Dallas, Texas, for the Respond-
ent.
William C. Strock, Esq., of Dallas, Texas, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on a charge filed December 7, 1989, by Emery Worldwide,
a CF Company (Emery or the Charging Party), the Regional
Director for Region 16 issued a complaint on January 19,
1990, alleging that Teamsters Local Union No. 988, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO (Local 988 or Re-
spondent) violated Section 8(b)(1)(A) and (3) of the National
Labor Relations Act (the Act) by, since October 2, 1989, at-
tempting through the grievance-arbitration process, to apply
the terms of a collective-bargaining agreement covering
Emery employees to persons covered by the Purolator Cou-
rier Corporation (Purolator) collective-bargaining agreement,
thus seeking to compel the merger of two historically sepa-
rate units.
Hearing was held in this matter on April 4, 1990, at Hous-
ton, Texas. Briefs were received from all parties on or about
May 9, 1990. Based on the entire record, including my ob-
servation of the demeanor of the witnesses, and after consid-
eration of the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Charging Party is a Delaware corporation with an of-
fice and place of business in Houston, Texas, where it is en-
gaged in the air and ground transportation of freight and
packages. It is admitted and I find that the Charging Party
is now and has been at all times material to this decision an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Respondent is now and
has been at all times material to this decision a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue for Determination and Relevant Facts
The complaint raises the issue of whether Respondent’s in-
sistence, in bargaining and in demands for arbitration, on
changing the scope of the separately established and recog-
nized Emery territorial representative and the Purolator Cou-
rier guard units violated Section 8(b)(1)(A) and (3) of the
Act. The facts in this case are virtually undisputed and most
were stipulated by all parties.
The route employees employed by Emery Air Freight are
referred to as territorial representatives. For at least 18 years,
these employees have been covered by a collective-bar-
gaining agreement between Emery and Respondent. They are
currently covered by a collective-bargaining agreement which
was effective December 1, 1985, through November 30,
1988, but which has been extended on a day-to-day basis
pursuant to agreement. Since October 1989 Respondent and
Emery have been engaged in negotiations for a new agree-
ment.
In June 1987, Emery acquired Purolator Courier Corpora-
tion. In October 1988, Emery recognized Local 988 as the
collective-bargaining representative for the Houston Purolator
route employees, referred to as courier guards, and began ne-
gotiations, resulting in a collective-bargaining agreement cov-
ering the Houston Purolator courier guards for the period No-
vember 2, 1988, through November 2, 1991. At no time dur-
ing the conduct of these negotiations between Respondent
and Purolator did any representative of Respondent seek ei-
ther to negotiate a joint contract to cover both the Purolator
and Emery employees or to cover the Purolator employees
with the existing Emery agreement.
In November or December 1988, Emery combined the
Purolator and Emery Air Freight terminals in Houston. Since
that time, there have been three terminals in Houston, with
members of each bargaining unit at each terminal. The super-
vision at each of the three terminals in Houston is common
for both units; that is, at each terminal both units share the
same terminal manager, dispatchers and supervisors. Route
employees from both units attend joint drivers’ meetings at
each terminal.
On April 17, 1989, Consolidated Freightways, Inc., pur-
chased Emery and its wholly-owned subsidiary, Purolator. At
that time, the Charging Party began changing its aircraft
logos to read ‘‘Emery Worldwide, a CF Company.’’ In June
or July 1989, the Charging Party began using a single way-
bill and overnight package for the transportation of freight.
The territorial representative and courier guard unit em-
ployees perform similar types of work—i.e., the pickup and
delivery of freight—save and except for the line haul driving,
which is, and historically has been, performed only by em-
ployees in the courier guard unit. While the routes at Hous-
ton have continued to be separated by unit under the respec-
tive collective-bargaining agreements, a driver in either unit
can pick up or deliver freight from customers who, prior to
1989, were exclusively Purolator or Emery customers. In
servicing these routes, there is complete interchange of vehi-
cles, except for the line haul vehicles, which continue to be
utilized only by the employees in the Purolator Courier guard
unit.
Despite the similarity of job function, there have been no
transfers between the two units. In fact, when the Charging
Party temporarily used a Purolator unit employee to cover
the route of an absent Emery unit employee, Respondent
filed a grievance on December 6, 1989, stating that an Emery
employee should have been used to cover the absent Emery
driver. The Joint Rail-Truck Arbitration Texas Conference
Joint Transfer Cartage and Garage Grievance Committee sus-
tained this grievance, finding merit in Respondent’s conten-
tion that a Purolator employee should not have been used
even to temporarily replace the absent Emery employee.
Except with respect to matters raised under the grievance
procedure, the Charging Party has adhered to the terms and
conditions set forth in the separate collective-bargaining
309TEAMSTERS LOCAL 988 (EMERY WORLDWIDE)
1 Chicago Truck Drivers (Signal Delivery), 279 NLRB 904, 907 (1986);
Service Employees Local 32B-32J (Allied Maintenance), 258 NLRB 430
(1981); Electrical Workers IBEW Local 323 (Active Enterprises), 242 NLRB
305 (1979); and Utility Workers IBEW Local 111 (Ohio Power Co.), 203
NLRB 230, 238–239 (1973).
agreements. Pursuant to the terms of the separate agreements,
layoffs, starting time/job posting, and bidding have differed.
Further, as provided in the respective contracts, there are sep-
arate seniority lists, benefits, classifications, and pay. Em-
ployees at Houston have been laid off by separate bargaining
unit pursuant to the respective bargaining agreements. Al-
though the work rules governing both units are virtually
identical, certain separate work rules are also contained in
the respective agreements. Emery pays union checkoff for all
represented employees at Houston on one check, despite sep-
arate invoice submission by unit by Respondent.
The Charging Party’s operations include a single central
hub located in Dayton, Ohio, which services the Houston ter-
minals. Labor relations policies for both units are adminis-
tered by Emery Worldwide Area Personnel and Labor Rela-
tions Manager Richard C. Weber. In Houston, the Charging
Party’s labor relations policies are administered by the same
persons for each unit. There is a single telephone listing in
Houston, and the telephone is answered either ‘‘Emery
Worldwide’’ or ‘‘Emery Worldwide, A CF Company’’ at
each terminal. As of April 2, 1990, all employees wear the
same uniform, which consists of a red shirt with a pocket
logo indicating ‘‘Emery Worldwide, A CF Company’’; green
pants with a red stripe down the side of the pant legs; and
a cap with the logo ‘‘Emery Worldwide, A CF Company.’’
In negotiations between Respondent and Emery, which
commenced in October 1989, Respondent originally sought
to cover under one agreement the route employees of both
Emery and Purolator throughout the nine-state area which
comprises the Southern Conference of Teamsters. These de-
mands were then modified to seek to cover under one agree-
ment only the Houston Emery and Purolator route employ-
ees. This bargaining demand culminated in the filing of a
grievance demanding application of the Emery collective-bar-
gaining agreement covering (approximately 47) Emery terri-
torial representatives to the Purolator Courier guard unit (ap-
proximately 70 employees). Respondent contends in the
grievance that the operations of Emery and Purolator have
been merged. The Charging Party denied the grievance, cit-
ing Section 2(b) of the collective-bargaining agreement,
which excludes from coverage those employees that are al-
ready covered by an existing agreement. Since December 7,
1989, Respondent has demanded arbitration of that griev-
ance. Respondent has insisted on this combined unit despite
the separate bargaining history and the Charging Party’s op-
position.
B. Analysis and Conclusions
Before analyzing the parties’ contentions, it first must be
determined exactly what the Respondent seeks by its insist-
ence on arbitration. The grievance which gives rise to this
dispute states:
With the consolidation of Emery Worldwide and
Purolator Courier into Emery Worldwide, a C.F. Com-
pany, Teamsters Local Union 988 is therefore taking
the position with Emery Worldwide as the surviving
company, in accordance with Article I—Recognition,
that the surviving company and contract is the agree-
ment between Emery Worldwide and Teamsters Local
Union 988. Teamsters Local Union 988 is asking that
all affected employees be made whole and the Emery
Worldwide contract cover all bargaining unit employ-
ees.
Respondent contends on brief that it is ‘‘both directly and
in effect contending and seeking to arbitrate the issue of
whether the Emery and Purolator units have been merged,’’
and ‘‘what the effect of the merger will be upon those em-
ployees who were affected by the merger of the two oper-
ations.’’ The Charging Party and the General Counsel both
contend that the grievance seeks to force the merger of the
two bargaining units and require that the terms of the Emery
contract be applied to the Purolator bargaining unit. I agree
with the latter view and believe that Respondent’s position
on brief is an attempt to avoid the applicability of the
Board’s decisions in a number of cases relied on by the Gen-
eral Counsel and the Charging Party.1
It is well established that the enlargement of a bargaining
unit is not a mandatory subject of bargaining under the Act.
For this reason, in the absence of mutual consent, one party
cannot force on the other an enlargement, alteration, or merg-
er of an existing bargaining unit or units. Chicago Truck
Drivers, supra at 906; Utility Workers Local 111, supra at
238; Service Employees Local Union 32B-32J, supra at 434.
In Electrical Workers IBEW Local 323, supra, the union
sought, as here, to apply the terms of employment covering
employees in one unit, the ‘‘commercial’’ unit, to those in
another, the ‘‘residential’’ unit. The Board found not only
that such insistence on a modification in unit scope violated
Section 8(b)(3), but also that, by seeking to enforce the com-
mercial agreement against the residential unit employees, the
union had restrained and coerced those employees in viola-
tion of Section 8(b)(1)(A). In Chicago Truck Drivers, the
Board cited favorably the previous holding in Electrical
Workers, stating, 279 NLRB at 906:
. . . the Board found that the respondent union violated
Section 8(b)(3) by demanding that negotiations be con-
ducted on a broader basis than the established units, by
insisting that the terms and conditions of employment
governing employees in the ‘‘commercial’’ unit be ap-
plied to employees in the ‘‘residential’’ unit, and by
seeking to enforce through the grievance-arbitration
procedure the terms of the commercial agreement
against work done by employees in the residential unit.
In so finding, the Board explained that the violation of
Section 8(b(3) consisted in the respondent’s unlawful
efforts to enlarge the commercial unit to include the
residential unit, i.e., the respondent could not lawfully
demand the merger of the two historically separate
units without the employer’s consent.
Similarly, in Service Employees Local 32B-32J, supra, the
respondent attempted to impose on an established unit a mul-
tiemployer association contract. The Board, in finding a vio-
lation of Section 8(b)(1)(A) and (3), specifically relied on the
fact the respondent had previously consented to the separate
unit. In the instant proceeding, the Respondent successfully
negotiated a contract covering the Purolator unit, after
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 On brief, the General Counsel contends that Respondent’s actions cannot
be defended on a theory of accretion. Although I find that the General Coun-
sel’s arguments in this regard are persuasive, I do not find it necessary to dis-
cuss them in this decision as Respondent asserts no such defense to its actions.
Purolator became a subsidiary of Emery, without attempting
to include the Emery unit in the negotiations or apply the
provisions of the Emery agreement to the Purolator unit
members. The Respondent also filed a grievance in Decem-
ber 1989, after the filing of the grievance under consideration
herein, in which it successfully defended the separateness of
the involved bargaining units with respect to job assign-
ments.
In Chicago Truck Drivers, supra, the Board found that the
respondent union violated Section 8(b)(3) by seeking to en-
force, through the grievance-arbitration procedure, the merger
of historically separate units without the employer’s consent.
In that case, the union filed a grievance and demanded arbi-
tration, claiming that three historically separate units, two of
which were comprised of employees of Signal Delivery
Service, Inc., should be covered by one collective-bargaining
agreement. The charging parties refused to arbitrate on the
grounds that the matter was not grievable, but rather a sub-
ject for contract negotiations. The Board found that each of
the three units was covered by a separate collective-bar-
gaining agreement. Also, each unit had a separate seniority
list and no employee was permitted to ‘‘bump’’ from one se-
niority list to another. Finally, it was found that the charging
parties did not agree to a merger of the separate units. Given
these factors, the union could not force a merger of the units
and its effort to do so violated the Act.
Although the Respondent does not address the other cases
cited above and relied on by the Charging Party and the
General Counsel, it does seek to differentiate the situation
here present from that in Chicago Truck Drivers, citing a
portion of that decision reading (279 at 907):
Finally, the Union does not contend that its arbitration
demands have a reasonable basis in fact or law. It is
not seeking to arbitrate whether a merger has occurred,
but is seeking to force, through arbitration, the merger
of historically separate units.
Respondent contends that by its grievance, it is asserting
‘‘that there exists only one combined and merged unit, which
has been merged under the terms of the Emery Agreement.’’
‘‘Where, as here, two union represented companies are
merged, nothing in the statute prohibits arbitration of the
issue of which company and contract is the survivor.’’ Re-
spondent then asserts on brief that the two historical units
have been merged into a single Emery Worldwide unit. I be-
lieve that this assertion is contrary to the facts. The Respond-
ent stipulated that there are in existence two separate and dis-
tinct collective-bargaining agreements covering the two bar-
gaining units, that there are separate seniority lists for each
unit, that there are no transfers between the two units and
that employees within each of the units are subject to dif-
ferent terms and conditions of employment including, inter
alia, wages, benefits, and contractual work rules. I would
again note the Union’s contention in December 1989, after
the filing of the grievance herein involved, that the units
were separate and the work of one cannot be transferred to
the other.
I agree with the Charging Party that the circumstances pre-
sented are not ones where the Union can in good faith con-
tend that the employer has merged the two bargaining units.
I also agree that the Respondent is seeking to force through
bargaining and arbitration the merger of those two bargaining
units. The Respondent’s efforts to merge the two units de-
prive the Employer of the benefit of its bargain under the
Purolator unit collective-bargaining agreement, which covers
a substantially greater number of employees in its Houston
operations and which was negotiated after the purchase of
Purolator by Emery. In conclusion, for the reasons and in re-
liance on the cases set out above, I find that Respondent’s
actions in seeking through bargaining and the grievance-arbi-
tration procedures to merge the historically separate Emery
and Purolator bargaining units and to force the Emery terri-
torial representative collective-bargaining agreement on the
Purolator Courier guard unit are in violation of Section
8(b)(1)(A) and (3) of the Act.2
CONCLUSIONS OF LAW
1. Emery Worldwide, a CF Company, is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Respondent, Teamsters Local Union No. 988, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By insisting on the merger of separate established bar-
gaining units of Emery territorial representatives and
Purolator Courier guards and by insisting on the arbitration
of a grievance which demands the merger of such separate
established bargaining units, a nonmandatory subject of bar-
gaining, and insisting on the application of the collective-bar-
gaining agreement covering the Emery territorial representa-
tive to the members of the Purolator Courier guard unit, the
Respondent has refused to bargain collectively with Emery
Worldwide, a CF Company and thereby has engaged in un-
fair labor practices within the meaning of Section 8(b)(3) of
the Act.
4. By processing its grievance and insisting on arbitration
of its grievance demanding the application of the Emery ter-
ritorial representative collective agreement on the employees
of Emery Worldwide, a CF Company in the Purolator Cou-
rier guard unit, the Respondent has restrained and coerced
employees and thereby has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act.
5. The above-described unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it is recommended that Respondent be
ordered to cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the Act, in-
cluding withdrawal of its grievance and arbitration demands
which seek to compel the merger of separate established bar-
gaining units and the application of the Emery territorial rep-
resentative collective-bargaining agreement upon the employ-
ees in the Purolator Courier guard bargaining unit.
[Recommended Order omitted from publication.]