Overnite Transportation Company v. NLRB

• Decision Date: 27 December 1963
• Docket Number: No. 8972,9000.,8972
• Citation: 327 F.2d 36
• Parties: OVERNITE TRANSPORTATION COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Jack EUDY et al., as Intervenors, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

327 F.2d 36 (1963)

OVERNITE TRANSPORTATION COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Jack EUDY et al., as Intervenors, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 8972, 9000.

United States Court of Appeals Fourth Circuit.

Argued September 26, 1963.

Decided December 27, 1963.

J. W. Alexander, Jr., Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on brief), for petitioner Overnite Transp. Co.

Robert J. Sanders (Sanders & Walker, Charlotte, N. C., on brief), for petitioners, Jack Eudy and others.

Warren M. Davison, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Lee M. Modjeska, Atty., N. L. R. B., on brief), for respondent.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and J. SPENCER BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge.

In this appeal, the Company and a group of employees as intervenors seek review of a Board order requiring the Company to bargain collectively with the union. In its answer, the Board requests enforcement in full.

The Company is a common carrier of general commodity freight in interstate commerce, serving territories in Virginia, North Carolina, South Carolina, and Georgia. The Charlotte terminal contains a shop that handles all maintenance for the Company's rolling equipment. Shop operations are performed in two buildings located a hundred feet apart and designated as the "old shop" building and the "new" or "main shop" building. The old building is used primarily as a tire department where tire department employees perform such operations as wheel balancing and aligning, tire changing, greasing, oiling, and washing. The old building also contains a check bay where rolling equipment is inspected for safe highway operation and necessary minor mechanical repairs are made. Some body work and painting are also done in the old building. The greater portion of mechanical work, ranging from simple mechanical operations to major overhauls and rebuilding diesel engines, is performed in the new building. The parts department is also located in the new building. Parts department clerks distribute parts to the mechanics, but perform no mechanical duties.

All shop employees are classified by the Company as mechanics, mechanic helpers, and mechanic trainees, parts department clerks, and tire department employees. The entire shop operation is under the supervision of Joseph T. Howell, Superintendent of Maintenance, and Shop Supervisor J. B. Whitley. There is no history of collective bargaining for any of the above employees. Although disputed, the record reveals that there is virtually no interchange of work between the employees performing mechanical duties and those employed in tire and parts departments.¹

The Company has no formal apprenticeship program under the auspices of the Department of Labor, but it does have a "training program" under which employees with less mechanical experience receive on the job training to enable them to become "good mechanics." Further, most of these less experienced employees have attended diesel school at their own expense prior to employment by the Company. Upon cross examination, a Company witness testified that it takes a minimum of 4 years to become an all around first class mechanic.

Employees working under the Company training program are designated variously as mechanic helpers or mechanic trainees, with no apparent significance in the different classifications.² There is not a 3 step progression from trainee to helper to mechanic; both helpers and trainees are in a direct line of progression to mechanic. Helpers and trainees are classified as helpers on the shop payroll. The only logical conclusion to be drawn from the record is that the Company makes no distinction in the duties and status of helpers and trainees. For this reason, these employees will be referred to as helper-trainees throughout the remainder of this opinion. The record also reveals that all mechanics and helper-trainees, including those employed in the check bay in the old building, are required to purchase their own tools and tool boxes, at costs ranging from a minimum of $200-$300 to a maximum of $700-$800.

Upon these facts established at the representation hearing, the Regional Director issued a Direction of Election, ruling that "all mechanics, mechanic helpers and mechanic trainees at the Employer's Charlotte, North Carolina, shop, excluding office clerical employees, all other employees, guards and supervisors" constituted an appropriate craft unit for purposes of collective bargaining and would be eligible to vote in an election to be held on May 18, 1962.

The ensuing election, conducted among the Company's employees, in the unit found appropriate, resulted in 18 ballots having been cast for the union, 10 against, and 9 challenged. After an investigation of the challenged ballots the Regional Director issued a Supplemental Decision and Certification of Representatives on June 20, sustaining 8 of the 9³ challenges, and determined that the union had received a majority of the valid ballots cast, 18-10. The union was thereupon certified as the exclusive bargaining representative for the employees in the appropriate unit. Subsequently on June 27, the Company filed a Request for Review of the Supplemental Decision and Certification, which was denied by the Board on July 17. The Company's refusal to bargain constitutes the alleged violation of Sections 8(a) (5) and (1). 29 U.S.C. § 158(a) (1) and (5) which is the subject matter of this controversy.

The Company concedes the unfair labor practice, but citing American Federation of Labor v. N. L. R. B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940) contends that it is not chargeable with the refusal to bargain because of the Board's erroneous determination of the appropriate bargaining unit. The Company maintains that the Board in excluding all shop employees except mechanics and helper-trainees from the bargaining unit acted in an arbitrary and capricious manner. It also maintains that the Board permitted the extent of organization to control its unit determination in violation of the express prohibition contained in 29 U.S.C. § 159(c) (5). The Company finds definitive proof of the Board's bad faith in its affirmance of 7 out of the 8 union challenges, i. e., the 6 helper-trainees and a lead mechanic. We are convinced from our reading of the record as a whole that the Board was neither capricious and arbitrary, nor was it acting in violation of its statutory duty in its determination of a proper bargaining unit. The Company may be quite correct in contending that a larger unit of all of its non-supervisory shop employees would have been proper; this does not invalidate the Board's finding of the smaller craft unit. As we had occasion to state only last term in General Instrument Corp. v. N. L. R. B., 319 F.2d 420 (4 Cir. 1963): "However, where, as often occurs, more than one unit might properly be found appropriate, the Board has the responsibility of making the determination. See N. L. R. B. v. Quaker City Life Insurance Co., 319 F.2d 690 (4 Cir. 1963), supra".

In a series of decisions prior to 1958, the Board did not recognize the craft status of automotive mechanics, the group with which we are here concerned. See, e. g., Gulf Oil Corp., 33 L.R.R.M. 1496 (1954), C. K. Williams & Co., 32 L.R.R.M. 1433 (1953), and Gulf Oil Corp., 22 L.R.R.M. 1502 (1948). Beginning in 1958, however, in International Harvester Co., 41 L.R.R.M. 1375 (1958), the Board recognized that the repair and maintenance of the modern automobile engine require the requisite skill and know how of properly trained craftsmen. A subsequent Board decision made it clear that an extensive apprenticeship program similar to that of International Harvester is not a prerequisite to the finding of an appropriate craft unit composed of automotive mechanics. The Board in Diamond T. Utah, Inc., 44 L.R. R.M. 1563 (1959), held that mechanics and their helpers constituted a permissible bargaining unit. This was true, the Board stated, because these men exercised the necessary skills and independent judgment identified with true craftsmen. The Board was not dissuaded from this view because there was no formal training program established by the Company. The Board noted the Company policy of hiring men with previous mechanical experience; assigning those with less experience to work as helpers, thereby furnishing them with on the job training. As in all crafts, there was necessarily some variation in the work the mechanics and helpers could and did perform.

We think Diamond Utah dispositive of the case before us. We are impressed with the fact that all of the mechanics and helper-trainees are required, at considerable expense, to purchase their own tools and tool boxes. In addition Company officials admitted that most of the helper-trainees attended diesel school before being employed by the Company. Once employed, they receive instruction and supervision in their mechanical duties. This Company training program, though not formalized, has the purpose of training inexperienced employees to become mechanics. Upon completion of training, the employee would be...