Custom Deliveries

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 1018 (N.L.R.B. 1994)

1018
315 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 District 2A, Transportation, Technical, Warehouse, Industrial and
Service Employees Union, affiliated with the American Maritime Of-
ficers.
2 Members Devaney and Browning; Member Stephens, dissenting,
would have denied the requests for review.
3 The Board’s August 8, 1994 Order provided that the Intervenor’s
request for review was granted. On November 2, 1994, an amended
Order issued, correcting an inadvertent error by indicating that both
the Employer’s and Intervenor’s requests for review were granted.
4 Under the general principle of recognition bar, an employer’s
recognition of a majority union bars a challenge to the union’s ma-
jority status for a reasonable period. Keller Plastics Eastern, 157
NLRB 583 (1966). See also Sound Contractors, 162 NLRB 364
(1966).
5 The Regional Director found that the Petitioner was not actively
campaigning at the time of the Employer’s recognition of the Inter-
venor, and, therefore, did not meet the requirements of the Rollins
Transportation System, 296 NLRB 793 (1989), exception to recogni-
tion bar. The Board currently is reconsidering Rollins. Smith’s Food
& Drug Centers, 21–RC–19312, review granted May 31, 1994. Our
resolution of the instant case, involving a ‘‘nonstranger’’ union, is
independent of the analysis in Rollins situations, and we express no
view herein on Rollins. 6 All dates are in 1993 unless otherwise indicated.
Custom Deliveries, Inc. and Highway, City and Air
Freight Drivers, Dockmen, Marine Officers As-
sociation, Dairy Workers and Helpers Local
Union No. 600, affiliated with the International
Brotherhood of Teamsters, AFL–CIO, Peti-
tioner. Case 14–RC–11332
December 16, 1994
DECISION ON REVIEW AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, BROWNING, AND COHEN
On June 30, 1994, the Regional Director for Region
14 of the National Labor Relations Board issued a De-
cision and Direction of Election in the above-captioned
proceeding in which he found that the Employer’s rec-
ognition of the Intervenor1 did not constitute a bar to
the instant petition. Thereafter, in accordance with Sec-
tion 102.67 of the Board’s Rules and Regulations, the
Employer and the Intervenor filed timely requests for
review of the Regional Director’s decision. The Board2
granted the requests for review.3
The sole issue presented is whether the Employer’s
voluntary recognition of the Intervenor, based on a
valid card majority, bars the subsequent petition filed
by the Petitioner, a union which had represented the
petitioned-for unit under the predecessor.4 The Board
has considered the record as a whole, including the
Employer’s brief on review and the positions of the
parties; has reconsidered Rheingold Breweries, 162
NLRB 384 (1966), the case upon which the Regional
Director relied; and has decided to reverse the Re-
gional Director’s decision.5
The Employer provides truck delivery service to
General Motors. The Employer has 60 drivers domi-
ciled at its Hazelwood, Missouri facility and an undis-
closed number in locations outside the St. Louis area.
The Employer’s predecessor employer, Ryder, em-
ployed 48 drivers at Hazelwood who were represented
by the Petitioner, and 32 drivers domiciled in outlying
areas who were represented by the Intervenor. The
Employer obtained its contract with General Motors in
August 1993.6 The Employer accepted applications
from former Ryder drivers, and offered employment to
25 drivers who had been employed by Ryder at Hazel-
wood. It trained 10 or 11 of those drivers who at-
tended a training session on October 24 especially for
former Ryder drivers, and eventually employed 3 of
them in its initial work force at Hazelwood. The Em-
ployer began operations on October 29, with 60 em-
ployees.
The Intervenor began organizing in mid-October. On
October 29, the day operations began, the Intervenor
demanded recognition. Upon verification by a third
party that the Intervenor possessed a card majority, the
Employer voluntarily recognized the Intervenor and
executed a recognition agreement recognizing the In-
tervenor as the exclusive bargaining representative for
all full-time drivers at Hazelwood. In January 1994,
the Intervenor and the Employer executed a collective-
bargaining agreement.
On October 20, the Petitioner distributed authoriza-
tion cards to six individuals at the union hall; only one
of the six had accepted employment with the Em-
ployer. The first authorization cards for the Petitioner
were signed on October 30. The Petitioner continued
soliciting cards, and on November 18, after securing
cards from a majority of the unit employees, it filed
the instant petition.
The Regional Director found that the petition was
not barred by the Employer’s voluntary recognition of
the Intervenor, relying on Rheingold Breweries, supra.
In that case, the Board established a two-prong test for
determining whether an employer’s recognition of a
union could bar the petition of a nonstranger union.
The Board held that a recognition agreement will not
bar the petition where a petitioning union: (1) has a
substantial claim of interest; and (2) was not afforded
prior opportunity to demonstrate the extent of its inter-
est by means of an election or through other appro-
priate procedures. Rheingold Breweries, 162 NLRB at
386. There, the Board found that the nonstranger peti-
tioner had evidenced a substantial claim of interest
where the employer had recently acquired the assets of
a brewery and had reemployed 5 or 6 salesmen who
had been represented by the petitioner, out of a current
unit of 25 employees. The Board stated that had the
employer revealed the petitioner’s possible interest in
the unit to the state board that had conducted the card
check that led to the recognition agreement, the peti-
tioner would have been given the opportunity to make
known the extent of its interest. Id.
1019CUSTOM DELIVERIES
7 In Superior Furniture, 167 NLRB 309 (1967), the Board cited
Rheingold without detail in a footnote to its finding that both the pe-
titioning union and the intervenor were actively organizing, but there
both unions were stranger unions and both were actually organizing.
In General Electric Co., 173 NLRB 511 (1968), the Board found
Rheingold inapplicable in a contract bar context where the petitioner
had no representation among the unit employees in the other facility.
In Whitemarsh Nursing Center, 209 NLRB 873 (1974), a case in-
volving a stranger union, the Board applied the principle of Keller
Plastics in finding that the recognition operated as a bar, but cited
Rheingold for comparison without explanation.
8 For example, in order to justify further proceedings on its peti-
tion, a petitioner must demonstrate designation by at least 30 percent
of the employees in the unit it claims appropriate. NLRB
Casehandling Manual, Sec. 11022.3(a). In cases involving represen-
tation petitions in expanding bargaining units, the Board in general
finds that if approximately 30 percent of the eventual employee
complement is employed (and 50 percent of the eventual job classi-
fications are filled), then the employee complement is substantial and
representative and an election is appropriate. K-P Hydraulics Co.,
219 NLRB 138 (1975) (petition dismissed where work force con-
stituted 28 percent of eventual employee complement and less than
50 percent of job classifications). In using these figures, the Board
drew guidance from the standards enunciated for contract bar pur-
poses in General Extrusion Co., 121 NLRB 1165 (1958).
In the instant case, the Regional Director found that
the Petitioner had a ‘‘substantial’’ claim of interest. In
so finding, the Regional Director relied on the Peti-
tioner being a nonstranger union—it had represented
employees performing unit work prior to the Employ-
er’s recognition of the Intervenor, albeit when those
employees were employed by a predecessor employer.
The Regional Director further noted that if all employ-
ees to whom the Employer tendered offers had accept-
ed employment, the Petitioner likely would have re-
mained the bargaining representative; that the Em-
ployer had trained 10 or 11 employees represented by
the Petitioner, and actually hired 3; and that the Peti-
tioner was prepared, prior to recognition of the Interve-
nor, to reestablish its historical majority through active
campaigning, and within 10 days after the Employer’s
recognition of Intervenor had authorization cards from
29 or more drivers. The Regional Director did not ad-
dress the second prong of Rheingold, i.e., the Petition-
er’s opportunity to demonstrate the extent of its inter-
est.
The Employer contends that the Regional Director
erred in finding that Rheingold established a separate
standard for recognition bar in cases involving non-
stranger unions, and that, in any event, the Petitioner
did not meet the Rheingold standard. The Intervenor
contends that the Regional Director’s reliance on
Rheingold was misplaced, because that case assumes
that a substantial complement of the predecessor’s em-
ployees continues in employment with the successor.
The instant case is the first published Board decision
since Rheingold which clearly raises the issue pre-
sented there.7 We therefore have decided to reexamine
the Rheingold doctrine. In Rheingold, the Board distin-
guished between situations in which the petitioning
union is a stranger to the unit employees and those in
which the petitioning union has previously represented
those employees. The underlying rationale for this dis-
tinction continues to be valid today. The Act protects
the interests of employees in choosing or rejecting a
collective-bargaining representative. At the same time,
the Board is charged with promoting stability in labor
relations. The Board seeks to balance these interests.
Where the petitioning union is a ‘‘stranger’’ union, the
question of continuity of a prior bargaining relation-
ship is not in issue. However, where the petitioning
union has been representing the unit employees, the
choice of the successor’s employees as expressed
through authorization cards does not exist in isolation
but must be weighed against the interests of employees
currently or recently represented by the petitioner and
the value to be given an established bargaining rela-
tionship.
The Board’s decision in Rheingold sought to give
proper weight to the petitioner’s status as the incum-
bent representative of employees in the petitioned-for
unit prior to the new employer’s acquisition of the
company. The Board found that the presence of a
number of previously represented employees, constitut-
ing a significant portion of the then-present unit,
showed there was substantial interest among the unit
employees in continuing with the labor organization
which had been representing the unit employees, and
that the determination of the bargaining representative
should be resolved by an election, rather than by the
employer’s voluntary recognition of a rival union. We
agree with this reasoning. Therefore, we reaffirm the
validity of Rheingold’s primary holding: that dem-
onstration by a nonstranger union of a continued sub-
stantial claim of interest in representing the unit pre-
cludes a recognition agreement from acting as a bar to
a petition for certification subsequently filed by the
nonstranger union. In doing so, however, we modify
Rheingold to clarify the term ‘‘substantial claim of in-
terest.’’ In Rheingold, the Board found a substantial
claim of interest where 5 or 6 of 25 unit employees
had been represented by petitioner, i.e., 20 to 24 per-
cent of the unit. We find that a more appropriate mini-
mum is 30 percent—a figure used by the Board in a
number of representation cases areas to demonstrate
sufficient employee interest in union representation to
warrant an election.8 Thus, we hold that a recognition
agreement between an employer and a union that
would otherwise constitute a bar to an election will not
do so where, as of the date of recognition, 30 percent
or more of the recognized unit consists of employees
previously represented by the petitioning nonstranger
union. If the nonstranger union has represented 30 per-
cent or more of the unit, it is entitled to an opportunity
to demonstrate the extent of current employee support.
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board has held in analogous accretion cases that
a merger between groups which have been represented
by different labor organizations raises a question of
representation unless one of the represented unions
clearly predominates. Martin Marietta Corp., 270
NLRB 821 (1984); Boston Gas Co., 221 NLRB 628
(1975). The principle here is the same: if there is more
than one union which claims to represent the employ-
ees, one union will not be allowed to ‘‘trump’’ the
other by obtaining recognition if the employees who
were previously represented by the other union are not
overwhelmingly predominated by the employees rep-
resented by the union which has entered into the rec-
ognition agreement. In such a case, we will find that
a question concerning recognition exists. The only dif-
ference is that in cases involving the issue of whether
there is a bar to an election, we conclude that a more
definite yardstick is necessary to measure the extent of
the support for the petitioning union which is nec-
essary to raise the question concerning representation.
See General Extrusion, supra at 1167. By analogy to
the accretion cases, therefore, we hold here that if a
nonstranger union has represented 30 percent or more
of the bargaining unit, that union has a substantial
claim of interest in representing the unit employees.
We further find that with this clarification of ‘‘sub-
stantial interest’’ it becomes unnecessary to determine
whether a petitioner had the opportunity to dem-
onstrate the extent of its interest, and therefore we will
no longer apply the second prong of the Rheingold
test. In deciding it is unnecessary to continue relying
on the ‘‘opportunity’’ factor, we note that the evi-
dentiary burden in proving, or disproving, ‘‘oppor-
tunity’’ to demonstrate interest is difficult and invites
prolonged litigation. Rather, we find that reliance on
30 percent alone forecloses uncertainty with regard to
a petitioner’s substantial interest. It is an objective fact
that is readily ascertained.
Applying the modified Rheingold test to the facts
here, we conclude that the instant petition is barred by
the recognition agreement between the Employer and
the Intervenor. Thus, as of the time of recognition, Oc-
tober 29, only 3 of the 60 unit employees (5 percent)
formerly had been represented by the Petitioner. This
figure falls far short of the 30 percent which we have
determined demonstrates a substantial claim of interest
by the nonstranger union in representing the Employ-
er’s employees. We reject reliance on any of the other
measures relied upon by the Regional Director as evi-
dence of substantial interest: the Employer’s tender of
offers of employment to and the training of employees
who had been represented by the Petitioner when these
employees did not become part of the unit;
prerecognition preparation to reestablish its historical
majority status; and postrecognition securing of a sub-
stantial number of authorization cards. Accordingly,
we shall reverse the Regional Director’s Decision and
Direction of Election, and dismiss the petition.
ORDER
The Regional Director’s Decision is reversed, the
Direction of Election is vacated, and the petition is dis-
missed.