CHS, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 914 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 164
914
CHS, Inc. and Local 638, International Brotherhood
of Teamsters, Petitioner. Case 18–UC–422
August 27, 2010
DECISION ON REVIEW AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On August 27, 2009, the Regional Director for Region
18 issued a Decision and Order, dismissing the Peti-
tioner’s unit clarification petition on the ground that the
drivers whom the Petitioner sought to accrete to the col-
lective-bargaining unit had been historically excluded
from that unit. Thereafter, in accordance with Section
102.67 of the Board’s Rules and Regulations, the Peti-
tioner filed a timely request for review. The Petitioner
contends that the drivers in question have not been his-
torically excluded from the unit, and that they should be
accreted to the unit.
On March 8, 2010, the Board granted the Petitioner’s
request for review.1 Thereafter, the Petitioner filed a
brief on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
Having carefully considered the entire record in this
proceeding, we conclude, contrary to the Regional Direc-
tor, that the unit clarification petition should be proc-
essed, and thus we remand the case to the Regional Di-
rector to address the merits of the accretion issue.
I. FACTS
The Employer, which hauls commodities to coopera-
tives, bulk plants, and farms, maintains terminals in
Grand Forks and Minot, North Dakota. The Employer
also has trucks located in Tioga, Carrington, Dickinson,
and Fargo, North Dakota.
Petitioner Teamsters Local 638 and another union—
Teamsters Local 120—are parties to a single collective-
bargaining agreement with the Employer, effective by its
terms from November 16, 2005 to November 15, 2010.
The recognition clause of that agreement states that the
employees “covered by this Agreement shall include any
and all the employees of the Employer employed at the
terminals indicated in Article 1.” Article 1 defines those
employees as “all tank drivers and mechanics employed
by the Employer at terminals located in North Dakota.”
Despite the wording of the agreement, the drivers and
mechanics at all the locations mentioned above—and not
just the locations with terminals—fall within the single
collective-bargaining unit. Petitioner Teamsters Local

1 Having carefully reconsidered the matter, the panel reaffirms the
earlier decision to grant review.
638 has jurisdiction over unit employees west of High-
way 281. There are approximately 17 drivers and 4 me-
chanics covered by the collective-bargaining agreement
west of Highway 281 (in Minot, Tioga, Carrington, and
Dickinson). Teamsters Local 120 has jurisdiction over
unit employees east of Highway 281. There are ap-
proximately 23 drivers and 3 mechanics covered by the
collective-bargaining agreement east of Highway 281 (in
Grand Forks and Fargo).
In June 2008, the Employer acquired New Rockford-
Fessenden Co-op Transport Association (NRF), a nonun-
ion competitor, and hired 14 NRF drivers but none of its
mechanics. NRF did not have any terminals. The NRF
drivers operated out of several locations including Fargo,
but not in the terminal cities of Grand Forks or Minot.
At the time of the hearing, there were 10 former NRF
drivers or replacements in Petitioner Local 638’s juris-
diction (west of Highway 281) and 4 in Local 120’s ju-
risdiction (east of Highway 281).
When the Employer acquired NRF, the Employer’s
bargaining unit drivers drove “white trucks,” and the
NRF drivers drove “green trucks.” After the Employer
acquired NRF, Petitioner Local 638 asked the Employer
what its intentions were regarding NRF. The Employer
said it would keep NRF as a totally separate entity. The
Petitioner filed a grievance claiming that the recognition
clause in the parties’ collective-bargaining agreement
covered the NRF green truckdrivers.
Shortly thereafter, Petitioner Local 638 withdrew its
grievance after determining that it could not move for-
ward on the basis of the contract’s recognition clause in
view of the Employer’s intention to treat NRF as a sepa-
rate entity.
About June 26, 2008, Petitioner Local 638 held a
three-way conference call with Teamsters Local 120 and
the Employer. The Employer reiterated that it would
operate NRF separately and that the NRF green truck-
drivers and the Employer’s white truckdrivers would
each keep their own customer accounts. The Employer
also assured both Unions that the Employer would not
take any work from one operation and give it to the
other.
On June 26 or 27, 2008, Petitioner Local 638, Local
120, and the Employer entered into a Memorandum of
Understanding (MOU). The MOU provided that “[w]hen
either the Union or Non Union work board has all of its
employees working, the extra work can be hauled tempo-
rar[ily] and [on a]non precedent setting [basis] by the
board that is not busy without the receiving board claim-
ing the extra work as their permanent work.” Accord-
ingly, although the MOU did not mention the NRF driv-
ers by name, the parties understood that the NRF green
CHS, INC. 915
truckdrivers could make deliveries to the white truck-
drivers’ customers if the white truckdrivers were all
working (and vice versa).
Between June and December 2008, Petitioner Local
638 received complaints from the unionized drivers that
the Employer was awarding the green truckdrivers highly
desirable runs that the Employer’s white truckdrivers
historically had performed. Petitioner Local 638 com-
plained to the Employer that the NRF green truckdrivers
were performing unit work while the unit drivers were
sitting at home, and that the Union did not think that the
Employer was really keeping the two companies sepa-
rate. In December or January, Petitioner Local 638 con-
cluded that some of the NRF green truckdrivers were
actually driving the Employer’s white trucks and that the
Employer had awarded the green truckdrivers a raise.
On January 28, 2009, Petitioner Local 638, Local 120,
and the Employer met, and Local 638 complained that,
among other things, the NRF green truckdrivers were
driving routes formerly driven by the Employer’s union-
ized white truckdrivers, and the green truckdrivers were
driving white trucks. The Employer said that it would
fix any dispatch problems, but insisted that the MOU
arrangement was actually benefiting the unions more
than the Employer. Petitioner Local 638 asked the Em-
ployer to explain in writing how it was beneficial, but the
Employer failed to keep its promise to do so. At the
hearing, the parties disagreed about whether Petitioner
Local 638 stated at the meeting that it would not continue
the MOU. Local 120 did not indicate its position regard-
ing renewing the MOU, because the white truckdrivers in
its jurisdiction (i.e., at Grand Forks) had not been hurt
the way Local 638’s drivers supposedly had been at
Minot.
In March 2009, Petitioner Local 638 learned from a
newly-hired green truck driver that he was being super-
vised by the same person who supervised the white
truckdrivers. Petitioner Local 638 also concluded that
the Employer had not replaced the five white truckdriv-
ers who had left the Employer’s employ, but was hiring
new green truckdrivers.
In an April 20, 2009 letter to the Employer, Petitioner
Local 638 complained that the Employer was paying the
green truckdrivers higher rates than the white truckdriv-
ers, and that the Employer could not “expect the Union
to continue to verbally honor the [MOU] dated June 26,
2008, if [the employer] continues to pay the green truck-
drivers more than the white truckdrivers.” Petitioner
Local 638’s letter continued:

Please note, as of Friday, April 20, 2009, Team-
sters Local 638 will no longer recognize the MOU
signed June, 2008 which actually expired December
31, 2008. Local 638 wants all work that was being
performed by the bargaining unit prior to the MOU
to be returned to the bargaining unit. Also, any work
performed by the green trucks or Transwood out of
Mandan that is protected by the Collective-
Bargaining Agreement will be time slipped and if
not paid will be grieved and arbitrated if necessary.

Petitioner Local 638 then filed its unit clarification pe-
tition seeking to accrete the former NRF-green truckdriv-
ers.
Although the Regional Director did not reach the mer-
its of the accretion issue, he found that the same com-
pany official handles discipline for both the unionized
white truckdrivers and the NRF green truckdrivers.
There was some testimony that some of the same offi-
cials can dispatch both sets of drivers. There was also
testimony from both sets of drivers that green truckdriv-
ers have performed work normally performed by the un-
ionized white truckdrivers. However, the Regional Di-
rector found that there was no evidence that the Em-
ployer was violating the MOU by making those assign-
ments, because, according to the Regional Director, there
was no evidence that all the unionized drivers were not
already busy at the time the NRF green truckdrivers did
the unit work. The Employer conceded that it was possi-
ble that one green truckdriver was handling white truck-
driver accounts “40% of the time.” The Employer con-
ceded that a number of white truckdrivers had left since
June 2008 and had not been replaced, but that it had re-
placed each of the NRF drivers who had departed. The
Employer asserted that because white trucks cost less
than green trucks, the Company was replacing green
trucks with white trucks. In response to Petitioner Local
638’s complaints that it would not be able to monitor
work assignments if both sets of drivers were driving the
same color trucks, the Employer agreed to place an “N”
on the trucks driven by the NRF green drivers. Green
truckdrivers apparently began wearing the same uniforms
as the white truckdrivers in October 2008. The Em-
ployer’s mechanics service all the trucks—whether white
or green. At the hearing, the Employer insisted that it
was continuing to operate the two companies separately
by, for example, training the two sets of drivers sepa-
rately.
II. ANALYSIS
The Regional Director dismissed the petition without
addressing the merits of the accretion issue because he
concluded that the NRF drivers were historically ex-
cluded from the unit. Contrary to the Regional Director,
we find that the facts do not demonstrate that the NRF
drivers have been historically excluded from the unit so
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 916
as to preclude the processing of the unit clarification pe-
tition.
As part of its authority to police collective-bargaining
units, the Board may accrete employees to an existing
unit without holding an election. See Westinghouse
Electric Corp. v. NLRB, 440 F.2d 7, 11 (2d Cir. 1971).
As the term itself implies, “[u]nit clarification . . . is ap-
propriate for resolving ambiguities concerning the unit
placement of individuals who, for example, come within
a newly established classification of disputed unit place-
ment or, within an existing classification which has un-
dergone recent, substantial changes in [its] duties and
responsibilities . . . so as to create a real doubt as to
whether the individuals in such classification continue to
fall within the category—excluded or included—that
they occupied in the past.” Union Electric Co., 217
NLRB 666, 667 (1975). Where new groups of employ-
ees have come into existence after a union’s recognition
or certification or during the term of a contract, if the
new employees “have such common interests with mem-
bers of [the] existing bargaining unit [such] that the new
employees would, if present earlier, have been included
in the unit or covered by the current contract, then the
Board will permit accretion in furtherance of the statu-
tory objective of promoting labor relations stability.”
United Parcel Service, 303 NLRB 326, 327 (1991) (em-
phasis added), enfd. 17 F.3d 1518 (D.C. Cir. 1994). Ac-
cord: Frontier Telephone of Rochester, Inc., 344 NLRB
1270, 1271 (2005) (“The fundamental purpose of the
accretion doctrine is to ‘preserve industrial stability by
allowing adjustments in bargaining units to conform to
new industrial conditions without requiring an adversary
election every time new jobs are created[.]’”) (citation
omitted), enfd. 181 Fed. Appx 85 (2d Cir. 2006).
However, because employees are accreted to an exist-
ing unit without being afforded an opportunity to vote,
“the accretion doctrine’s goal of promoting industrial
stability places it in tension with the right of employees
to freely choose their bargaining representative.” Fron-
tier Telephone, 344 NLRB at 1271. Accordingly, the
Board follows a restrictive policy in finding accretions to
existing units,” Archer Daniels Midland Co., 333 NLRB
673, 675 (2001), and Board policy is to “permit accretion
‘only when the employees sought to be added to an exist-
ing bargaining unit have little or no separate identity and
share an overwhelming community of interest with the
preexisting unit to which they are accreted.’” Frontier
Telephone, supra, 344 NLRB at 1271 (citation omitted).
As pertinent here, unit clarification proceedings to ac-
crete employees are generally not appropriate when the
accretion would upset an established practice concerning
the unit placement of the individuals in question. Union
Electric Co., 217 NLRB at 667. As the Board has ex-
plained, “No . . . accommodation of the collective-
bargaining process is required or warranted . . . where the
parties to a bargaining relationship have historically
failed to include an existing group of employees [in] a
bargaining unit.” United Parcel Service, 303 NLRB at
327. Thus, if the classification existed at the time of the
union’s certification or prior to the parties’ current col-
lective-bargaining agreement, “the parties have only
themselves to blame for any instability resulting from the
existence of a group of employees having interests in
common with unit employees but excluded from repre-
sentation in the unit.” Ibid. In short, “[t]he Board will
not entertain a unit clarification petition [that] seek[s] to
accrete a historically excluded classification into a unit,
unless the classification has undergone recent, substantial
changes.” Kaiser Foundation Hospitals, 337 NLRB
1061, 1061 (2002). Accord: Bethlehem Steel Corp., 329
NLRB 243, 244 (1999) (“where a position or classifica-
tion has historically been excluded from . . . the unit, and
there have not been recent, substantial changes that
would call into question the placement of the employees
in the unit, the Board generally will not entertain a peti-
tion to clarify the status of that position . . ., regardless of
when in the bargaining cycle the petition is filed”).
After reviewing the record, we are satisfied that the
NRF drivers have not been historically excluded from the
unit. No collective-bargaining agreement has ever ex-
plicitly excluded those drivers.2 To be sure, even absent
an explicit contractual exclusion, the Board will still de-
cline to process a unit clarification petition if the classifi-
cation historically has been excluded by practice—i.e.,
where the parties to a bargaining relationship have his-
torically failed to include the group in the bargaining
unit. But the justification for that policy—namely, that if
the classification existed prior to the parties’ current col-
lective-bargaining agreement, the parties have only
themselves to blame for any instability resulting from a
group of employees having interests in common with the
unit employees but excluded from representation—is not
implicated here. After all, the Employer acquired NRF
and hired the 14 NRF green truckdrivers in June 2008
during the term of a collective-bargaining agreement that
was still in effect when Petitioner Local 638 filed its unit
clarification petition in June 2009 and which continues in

2 The parties’ contract provides that the employees covered by the
agreement include drivers and mechanics “employed by the Employer
at terminals located in North Dakota.” The Regional Director appears
to have concluded that the NRF drivers were not employed at “termi-
nals.” But the parties agreed at the hearing, as the Regional Director
noted, that the contract does indeed also cover the Employer’s drivers
who work at North Dakota locations where there are no terminals.
CHS, INC. 917
effect until November 15, 2010. In other words, because
the Petitioner has not had the opportunity to negotiate a
collective-bargaining agreement with the Employer since
the Employer hired the NRF drivers, the Petitioner can-
not be penalized by the fact that there are some drivers
employed by the Employer who are covered by the col-
lective-bargaining agreement and other drivers who are
not. See SunarHauserman, 273 NLRB 1176, 1177
(1984) (dock auditor position created in March 1981 dur-
ing term of collective-bargaining agreement has not been
historically excluded, because union’s first opportunity
to include this position did not arise until 2 years later
during the 1983 negotiations for a successor agreement);
Bethlehem Steel Corp., 329 NLRB at 241–242 (unit
clarification petition is timely despite being filed 2 years
after product marketing employees transferred to facility
because the classifications did not exist at the facility
when parties executed their current collective-bargaining
agreement and had been in dispute since they came into
being at the new location).3
In finding that the NRF drivers were historically ex-
cluded from the collective-bargaining unit, the Regional
Director reasoned that Petitioner Local 638 “agreed to
the exclusion” of the NRF green truckdrivers by with-
drawing its grievance, entering into the MOU allowing
those drivers to perform unit work so long as all the un-
ionized white truckdrivers were busy, and failing to re-
serve the right to file a unit clarification petition. We
disagree with the Regional Director because he failed to
appreciate the significance of the sequence of events
leading to the MOU and the filing of the petition here. It
is uncontroverted that Petitioner Local 638 initially filed
a grievance alleging that the collective-bargaining
agreement covered the NRF green truckdrivers, an action
that demonstrates that the Petitioner did not acquiesce to
the exclusion of the NRF drivers. See Bethlehem Steel
Corp., 329 NLRB at 241 (union’s filing a grievance
demonstrates that union was not acquiescing in their ex-
clusion). To be sure, the Petitioner then withdrew the
grievance and entered into an MOU with a term of only 6

3 The three cases relied on by the Regional Director are distinguish-
able. There, unlike here, either the parties had negotiated collective-
bargaining agreements after the disputed classifications had come into
being but failed to include them in the unit, or the employees at issue
were in existence at the time of an election, but were not included in the
unit. See Kaiser Foundation Hospitals, 343 NLRB 57, 64 (2004) (dis-
puted classification has been historically excluded where it has been
staffed continuously for over 20 years during many contract cycles and
had always been outside the unit); United Parcel Service, 303 NLRB
326, 327 (1991) (employees excluded for years under two successor
agreements), enfd. 17 F.3d 1518 (D.C. Cir. 1994); Gitano Distribution
Center, 308 NLRB 1172, 1174 (1992) (it is inappropriate to enlarge
unit to include USO employees when they were in existence at time of
second election, but were not included in unit).
months. But, the Petitioner did that only after the Em-
ployer stated that it would run NRF as a totally separate
operation. Indeed, the Regional Director found that the
Petitioner withdrew the grievance “after determining that
[it] could not move forward on the basis of the recogni-
tion clause in view of the Employer’s intention to treat
NRF as a separate entity.” The Petitioner’s decision was
certainly defensible, because accretion is not appropriate
when an employer decides to separately maintain a
newly acquired operation, rather than merge it with the
existing unionized operation. See Seven-Up/Canada Dry
Bottling Co, 281 NLRB 943, 946 (1986) (as a general
proposition, a separately maintained, newly acquired
operation will itself constitute a separate appropriate unit,
and thus will not be accreted by the Board).
In the circumstances, we simply cannot find that the
Petitioner “agreed” to exclude the NRF drivers if the
Employer did not run NRF as a totally separate opera-
tion. Rather, we think that the better conclusion is that
the Employer knew that the Petitioner wanted to include
those drivers in the unit, and was “dropping” its efforts to
include them for 6 months based on the Employer’s rep-
resentation that the two operations would be kept sepa-
rate. That conclusion is buttressed by the fact that the
Petitioner filed its unit clarification after (1) the MOU
expired and (2) Petitioner concluded that the Employer
was not in fact running NRF as a totally separate opera-
tion.4 The Board has excused union delays in filing unit
clarification petitions when an employer has failed to
comply with information requests about the positions at
issue. Cf. Westinghouse Electric Corp. v. NLRB, 440
F.2d 7, 11–12 (2d Cir. 1971) (excusing union’s delay in
filing unit clarification petition because employer with-
held information necessary for union to determine
whether positions should be added to unit). A fortiori, a
union’s delay in filing a petition should be excused if the
employer has misled the union regarding its operations or
classifications. Moreover, the term of the MOU was

4 Similarly, the fact that the Petitioner failed to reserve the right to
file a unit clarification petition does not demonstrate that the Petitioner
was acquiescing in the exclusion of the NRF drivers if the Employer
did not maintain NRF as a totally separate operation. See Brookdale
Hospital Medical Center, 313 NLRB 592, 592 fn. 3 (1993) (the absence
of an explicit reservation by union of its right to pursue the issue with
the Board does not evidence a waiver of the right when it agreed to the
contract, because both parties knew—by virtue of the union’s letter
requesting inclusion of the employees and the employer’s refusal—that
a dispute existed as to the placement of the therapists which was not
resolved during the negotiations). The Regional Director’s conclu-
sion—that there is no evidence that the Employer violated the MOU by
assigning unit work to NRF drivers when the unit drivers were avail-
able—strikes us as largely irrelevant even if true. We believe that the
more significant fact is that there is evidence that the Employer was not
keeping the operations totally separate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918
from June 26 to December 31, 2008, a mere si6x months,
and thus “any exclusion” was relatively short-lived.5

5 The Regional Director also found that the Petitioner “did not renew
its demand that the green truckdrivers be included under the collective
bargaining agreement, but rather demanded that work be returned to the
bargaining unit” in its April 2009 letter to the Employer. We disagree.
To be sure, Petitioner stated in one sentence of that letter that it wanted
all work that was being performed by the bargaining unit prior to the
MOU to be returned to the bargaining unit. But, the letter did not end
there. Instead, the Petitioner stated in the next sentence of the letter
(emphasis added), “Also, any work performed by the green trucks or
Transwood out of Mandan that is protected by the Collective Bargain-
ing Agreement will be time slipped and if not paid will be grieved and
arbitrated, if necessary.” Given that additional language, we believe
that the Petitioner was indeed asserting that the green truckdrivers’
work is covered by the collective-bargaining agreement. Moreover,
In sum, based on the particular circumstances of this
case, we find that the NRF drivers were not historically
excluded from the collective-bargaining unit. Accord-
ingly, we shall remand the case so that the Regional Di-
rector can determine the merits of the accretion issue.
ORDER
The Regional Director’s Decision and Order is re-
versed. This case is remanded to the Regional Director
for further appropriate action.

Petitioner filed a unit clarification petition seeking to include the NRF
drivers in the unit.