Boulder Transportation Co.

National Labor Relations Board - Board Decisions

Jun 30, 1958

120 N.L.R.B. 1783 (N.L.R.B. 1958)

GIBBS OIL COMPANY 1783
circumstances, Tarczon could not properly ignore the incident. He did what any
normal responsible superior would do, namely, discussed the complaints with the
employee in question. Tarczon testified on cross-examination that his "original
intention was just to reprimand the man" but that "when he shot the same question
at me, `Why don't you fire meT he provoked me to fire him.. . As far as I was
concerned he was sent home that day for the second question he threw at me
why I don't fire him . he was provoking every means in his power to get me to
fire him, to come up, I believe, and give him the words, `You are fired."' Tarczon's
explanation of h s motives-that he originally intended only a reprimand but was
goaded into more drastic action by this second indication of Mitchell's insubordinate
attitude-is reasonable and convincing. It is therefore credited. In this connec-
tion, the fact that Tarczon advised Mitchell regarding his right to appeal indicates
that. the discharge was not summary.25 Moreover, union activities were not men-
tioned by Tarczon when he sent Mitchell home, or in his written report of the
matter to Stephens. After carefully weighing all the factors on each side, I an
convinced, and find, that the General Counsel has failed to prove by a fair prepon-
derance of the evidence that Mitchell's known union activities constituted a substan-
tial or motivating reason for his discharge.26
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Sheet Metal Workers International Association is, and at all material times
has been, a labor organization within the meaning of Section 2 (5) of the Act.
2. By threatening its employees with reprisal if they engage in concerted activities,
thereby interfering with, restraining, and coercing them in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The above-described unfair labor practices tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the meaning of Section 2 (6) and
(7) of the Act.
4. The allegation of the complaint that the Respondent discriminated against
John H. Mitchell has not been sustained.
[Recommendations omitted from publication.]
The fact that Mitchell failed to take any appeal, of course, is 'immaterial.
1N Luttrell, a witness for the General Counsel, admitted on cross-examination that
Tarczon stated that he had discharged Mitchell because when he (Tarczon) had com-
plained that Mitchell's work was unsatisfactory, Mitchell had responded : "if [Tarezon]
didn't like the way his [Mitchell's] work was going on, why didn't he [Tarczon] fire him
[Mitchell]." This self-serving statement by Tarczon is mentioned in passing, but is
not relied upon in arriving at a determination regarding the reasons for Mitchell's
discharge."
Gibbs Oil Company and Henry and Paul Gibbs d/b/a Boulder
Transportation Company 1 and Local 68, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, Petitioner . Case No. 1-RC-5159. June 30, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Edwin J. J. Dwyer,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed 2
I Ilerein called Gibbs and Boulder, respectively.
2At the hearing Gibbs and Boulder moved to dismiss the petition on the ground that
the Petitioner had not complied with Section 9 (f), (g), and (h) of the Act. This con-
120 NLRB No. 202.
1784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
1. Gibbs admits that its operations meet the Board's jurisdictional
standards, but Boulder contends that its operations do not, and that
Gibbs and Boulder should be treated as separate enterprises for
jurisdictional purposes.
Gibbs is a family corporation which purchases, stores, and dis-
tributes gasoline, fuel oil, and automobile accessories in Saugus,
Massachusetts. Henry Gibbs and Paul Gibbs are the principal stock-
holders of Gibbs and with Rose Gibbs are its directors. Henry Gibbs
is the manager and president of Gibbs and conducts its labor rela-
tions. Boulder is a copartnership composed of Henry Gibbs and Paul
Gibbs and delivers gasoline and heavy oils purchased by Gibbs. It
performs services for Gibbs only. Henry Gibbs also is the manager
of Boulder and conducts its labor relations.
The operations of both companies are carried on in the same loca-
tion and, although both Gibbs and Boulder employ their own dis-
patcher each of them dispatches employees of both companies. Both
companies use the same garage facilities and, on occasion, there is
interchange of drivers between the two companies. Each company
has a mechanic on its payroll but each mechanic works on the trucks
of both companies. Employees of both companies punch the same
time clock, and, although separate contracts have been negotiated
for the employees of each, such contracts have been identical and have
been negotiated by Henry Gibbs.
From the foregoing, we find that Gibbs and Boulder are operated
as a single, integrated enterprise, under common ownership and man-
agement, with unified control of labor relations, and that, for juris-
dictional and unit purposes, they constitute a single employer within
the meaning of the Act.'
As Gibbs annually purchases from local suppliers products pro-
cured by them from outside the Commonwealth of Massachusetts
valued in excess of $2,000,003, we find that it will effectuate the policies
tention as to the adequacy of Petitioner 's compliance involves administrative matters not
cognizable in this proceeding We are piesently administratively satisfied that the Peti-
tioner is in compliance Desanlniers and Company , 115 NLRB 1025 ; Standard Cigar
Company , 117 NLRB 852 The motion is therefore denied.
The Intervenor ( see footnote 5, snfra ) contends that the Petitioner no longer has a
sufficient showing of interest , as some employees who had signed caids for the Petitioner
have revoked their designations . We find no merit in this contention . Georgia Kraft Co.,
120 NLRB 806, footnote 5.
Gibbs and Boulder contend also that the petition should be dismissed as no demand
for recognition was made by the Petinonei prior to the filing of the instant petition, as is
required by the Act and the Board ' s Rules We find no merit in this contention as it is
sufficient that Gibbs and Boulder refused to recognize Petitioner at the hearing General
Shoe Corporation , 109 NLRB 618. 619
3 Fi ank 9 Omens Co , et ai , 118 NLRB 1619.
GIBBS OIL COMPANY 1785
of the Act to assert jurisdiction over both Gibbs and Boulder in this
proceeding .4
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. Gibbs, Boulder, and the Intervenor contend that their current
contracts are a bar to this proceeding.
On March 13, 1952, Gibbs and Boulder executed separate, identical
contracts with the Intervenor effective until May 28, 1955, and from
year to year thereafter absent notice of termination given by either
party to the other 60 days prior to the terminal date of the contracts.
Each such contract 6 provided for annual midterm renegotiation of
wage rates and, thereafter in 1953, 1954, 1955, and 1956, wage rates
were adjusted and the other terms of the contract were continued in
effect. Also in each of these years, the duration of the contract was
extended for an additional year. Thus, in 1953 the term was extended
to May 28, 1956; in February 1954 to May 28, 1957; in March 1955
to May 28, 1958; and in March 1956 to May 28, 1959. On August
23, 1957, the wage rates of the contract were again renegotiated and
the remaining terms of the contract were extended unchanged until
May 28, 1960. On January 1, 1958, the contract was again reopened
and, at the time of the hearing herein, wage negotiations were being
conducted by Gibbs, Boulder, and the Intervenor, but no agreement
had been reached. The instant petition was filed on January 6, 1958.
The Companies contend that the supplement of August 1957 is
operative as a bar for at least the first 2 years of its term; I that the
petition, having been filed during that 2-year period, should be
dismissed as' untimely ; and that the Board's premature extension
doctrine is not applicable to defeat the August 1957 supplement as
a bar, because "the contract originally signed on March 13, 1952
would, except for successive amendatory agreements, have expired on
May 28, 1955." It appears from this and other statements in the
Companies' brief 8 that the Companies' contention is in effect, that
the Board should treat the August 1957 extension as having been
executed at a time when there was no bar to the filing of a petition,
and is therefore not subject to the premature extension rule.
We do not agree. When the 1957 supplement was executed there
was in effect the supplement signed in March 1956, which ran to
May 28, 1959. Such 1956 supplement was operative as a bar for the
I
* The T H Rogers Lumber Company, 117 NLRB 1732.
5 Flying "A" Associates, Inc., herein called Intervenor, intervened at the hearing on
the basis of a contract interest. .
8 Hereinafter the term "contract" is used to denote both the Gibbs contract and the
Boulder contract.
I There is no showing or contention that contracts of more than 2 years ' duration pre-
vail in a substantial portion; of the industry here involved. See General Motors Corpo-
ration, 102 NLRB 1140
8 The brief cites Cushman's Sons, Inc., 88 NLRB 121, where the Board held that the
premature extension doctrine did not apply to a contract executed during the fourth year
of a 5-year contract, which was not operative as a bar after its second year.
483142-59-vol. 120-114
I
1786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first 2 years of its term,9 namely, until March 1958. As the 1957
supplement was executed during this 2-year period, the situation here
is not analogous to that in the Cushman case, cited by the Employer,
where there was no contract bar in effect when the extension
agreement was signed.
Accordingly, we find that the August 1957 supplement was a pre-
mature extension of the 1956 supplement and that, as the petition
filed herein on January 6; 1958, was timely filed with respect to_ the
latter supplement, there is no contract bar here.
We find, therefore, that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of truckdrivers and truck mechanics
at Gibbs and Boulder. Gibbs, Boulder, and the Intervenor assert
that separate units of truckdrivers of each company are alone
appropriate and Gibbs and Boulder would exclude regular and tem-
porary truck mechanics and temporary drivers. In view of our
finding that Gibbs and Boulder constitute a single employer for unit
purposes, and in view of the geographical proximity of the opera-
tions of both and the interchange of employees, we find that an over--
all unit of employees of, Gibbs and Boulder may be appropriate.
However, in view of the history of bargaining for separate units,
we find that such separate units may also be appropriate.",
There remains for consideration the unit placement of the tem-
porary employees and of the truck mechanics.
The record shows that during the peak sales period of Gibbs and
Boulder, extending from December through March 'of each year,
Gibbs hires from 4 to 11 additional drivers and 1 additional mechanic.
During the same period Boulder hires 4 or 5 additional drivers. These
additional employees work for a minimum of 4 days to a maximum of
3 months. These employees do not receive the same benefits as regular
employees and are hired at the beginning of each season and dis-
charged at the end thereof. During the 1957-58 season Gibbs and
Boulder reemployed only 3 of the 15 temporary drivers who had
worked during the prior peak season.
In view of the limited period of their employment, and as there is
no substantial likelihood of their being called back in succeeding-
years, we find that the truckdrivers hired during the Employers'
annual peak periods have insufficient community of interest with
other employees to warrant including them in the unit." We shall,
9 See footnote 7, supra.
10 Adams Coal Company, Inc., 118 NLRB 1493.
11 Callahan-Cleveland, Inc., 120 NLRB 1355, and cases cited therein. While all new
employees are designated as "temporary" until they serve the 6 month probationary period
provided in the contract , it appears that the only "temporary " employees sought to be
excluded are those hired during the peak season with no expectancy of retention beyond
such season. . -
GIBBS OIL COMPANY 1787
therefore, exclude them. As there was no evidence as to the regularity
of the employment of the "temporary" mechanic, we shall permit
him to vote under challenge.
In addition to the foregoing temporary employees, Gibbs and Boul-
der would exclude and the Petitioner would include, 1 truck mechanic
of Gibbs and 1 truck mechanic of Boulder. These employees have
not heretofore been, included in the bargaining units. The record
discloses that they work in the garage and each one works on equip-
ment of both Gibbs and Boulder and is subject to the direction of
dispatchers of either company. Insofar as appears from the record,
apart from the drivers and mechanics, Gibbs and Boulder have no
production and maintenance employees. In view of the foregoing,
we find that the mechanics may be included in the overall unit sought
by the Petitioner. However, as they constitute a residual group of
unrepresented employees, they may also constitute a separate appro-
priate unit.
We shall, therefore, make no final unit determination at this time,
but shall direct separate elections by secret ballot among the employees
in the following voting groups at Gibbs' and Boulder's, Saugus,
Massachusetts, location, excluding from each group office clerical
employees and supervisors as defined in the Act:
Group 1, all truckdrivers employed, by Gibbs; group 2, all truck-
drivers employed by Boulder; and group 3, all mechanics employed
by Gibbs and Boulder.
If the Petitioner wins the elections in all three groups, the employees
in these groups will be taken to have indicated their desire to consti-
tute a single combined unit and the Regional Director is hereby in-
structed to issue a certification of representatives to the Petitioner for
such combined unit, which the Board, in the circumstances, finds to
be appropriate. If the Petitioner fails to win the elections in all
three groups, the following will apply :
Groups 1 and 2: If the Intervenor wins the election in either or
both of these groups, or the Petitioner wins the election in one of these
groups, the employees in each such group will be taken to have indi-
cated their desire to constitute a separate appropriate unit, and if
the Petitioner wins the election in both groups (failing to win in
group 3), the employees in such groups will be taken to have indicated
their desire to constitute a single combined unit. The Regional Di-
rector conducting the elections directed herein is hereby instructed to
issue a certification of representatives for such separate unit or com-
bined unit, which the Board, in the circumstances, finds to be appro-
priate for purposes of collective bargaining.
Group 3: If the Petitioner 12 wins the election in this group (fail-
ing to win in group 1 or 2 or both), the employees therein will be
12 We do not place the name of the Intervenor on the ballot in group 3 because it does
not seek the mechanics , and moreover has made no showing of interest among them.
1788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken to have indicated their desire to constitute a separate appro-
priate unit, and the Regional Director conducting the election is
hereby instructed to issue a certification of representatives for such
separate unit, which the Board, in the circumstances, finds to be
appropriate.
[Text of Direction of Elections omitted from publication.]
Waterway Terminals Corporation , Petitioner and United Pack-'
inghouse Workers ' of America , Local No. 591 , AFL-CIO. Case
No. 15-RM-110. June 30,1958
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Fred A. Lewis, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved herein claims to represent the
employees of the Employer.
3. The Employer and the International Longshoremen's and Ware-
housemen's Union, Local 207, hereafter referred to as Local 207, en-
tered into a contract on March 12, 1957, effective from October 1, 1956,
until September 30,1959. Thereafter, on January 1, 1958, the United
Packinghouse Workers of America, AFL-CIO, hereafter referred to
as the Union, requested recognition from the Employer as the succes-
sor and assignee to the rights of the bargaining agent under the above-
mentioned contract. The Employer declined to recognize the Union
and filed the instant petition. The Union alleges the contract as a
bar to a present determination of representatives.
The Employer bases its refusal to recognize the Union on the fol-
lowing grounds :
(1) The alleged assignment was not made in accordance with the
bylaws of the International Longshoremen's and Warehousemen's
Union, Local 207.
(2) The contract cannot serve as a bar even if validly assigned
since at the time of the alleged assignment the Union was not in
compliance.
(3) The contract cannot serve as a bar even if validly assigned as
it contains an illegal union-security clause.
120 NLRB No. 224.