Bakery Wagon Drivers Local 484

National Labor Relations Board - Board Decisions

Nov 12, 1974

214 N.L.R.B. 891 (N.L.R.B. 1974)

BAKERY WAGON DRIVERS LOCAL 484
Bakery Wagon Drivers & Salesmen Local 484 , Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America (Oroweat
Baking Company ) and Kathleen Chase . Case 20-
CB-3041
November 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On April 2, 1974, Administrative Law Judge David
E. Davis issued the attached Decision in this pro-
ceeding, finding that Respondent had not engaged in
the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed
in its entirety, as set forth in the Administrative Law
Judge's Decision. Thereafter, the General Counsel
filed exceptions and a supporting brief and the Re-
spondent filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated it au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and finds that Respondent did violate Section 8(b)(2)
and (1)(A) of the Act as alleged in the complaint.
The Board has accordingly decided to affirm the rul-
ings, findings, and conclusions of the Administrative
Law Judge only to the extent consistent herewith.
The instant proceeding apses from the following
facts, as found by the Administrative Law Judge or
revealed by the uncontradicted testimony. Oroweat
Baking Company, herein called the Company, is en-
gaged in nonretail baking and wholesale distribution
of bakery products. For some years the Company
has had separate collective-bargaining agreements
with Bakery Wagon Drivers & Salesmen Local 484,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called Respondent, and Local No. 24 Bakery and
Confectionery Workers' International Union of
America, AFL-CIO, herein called Bakery Workers.
Each of these agreements contains a union-security
provision.
On October 26, 1973, Emil DeVincinzi, Re-
spondent's assistant business agent, was instructed
by Wendell Phillips, Respondent's executive officer,
to proceed to the Company's premises to check on a
complaint that certain work believed to be covered
under Respondent's agreement with the Company
was being performed by employees who were mem-
891
bers of Bakery Workers. Accordingly, DeVincenzi
went to the Company's plant and inspected that area
where the work which was the subject of the com-
plaint was being performed. Shortly thereafter, De-
Vincenzi met with Jonas Christensen, the Company's
general manager, and Paul Zeffer, the Company's
plant superintendent. During the ensuing 30- to 45-
minute conversation, the three discussed various
matters, including the manning of the crouton ma-
chine and the wrapping machine, the work which
was the subject of the complaint.
In the discussion, DeVincenzi took the position
that the manning of the crouton machine was work
covered under Respondent's collective-bargaining
agreement with the Company and that there was a
longstanding agreement between Respondent and
Bakery Workers that one of the men assigned to the
wrapping machine, when it was used for wrapping
whole loaves of French bread, should be under
Respondent's jurisdiction. He therefore insisted that
such work be performed by employees covered by
Respondent's agreement with the Company.' Initial-
ly, Christensen and Zeffer disagreed, arguing that
employees represented by Bakery Workers had man-
ned the crouton and wrapping machines since their
introduction at the plant several years earlier, and
that Respondent's contract did not specifically in-
clude such work. Then, according to the uncontro-
verted testimony of Christensen and Zeffer, they of-
fered to pay the employees presently assigned to the
wrapping machine under the terms and conditons of
Respondent's contract, but DeVincenzi refused. Ulti-
mately, Christensen and Zeffer, in order to avoid fur-
ther controversy, agreed to the following compro-
mise:
Of the three employees then manning the crouton
machine, one, Walter Mountain, would be permitted
to remain at that machine and, although he would
not be required to join Respondent, he thereafter
would be paid according to the terms and conditions
of employment under Respondent's contract. It is
clear that Mountain, pursuant to an agreement be-
tween Respondent and Bakery Workers designed to
preserve his accruing pension benefits in the latter
organization, had not been required in the past to
join Respondent and had maintained his member-
ship in Bakery Workers even though he had occa-
sionally performed work falling within Respondent's
jurisdiction.
1 Devincenzi testified that he stated to Christensen and Zeffer that he
objected to having "people who were not covered by our contract operating
the machine " Christensen and Zeffer, while not recalling the specific words
used by DeVincenzi , testified that they understood him to mean that he
wanted members of Respondent to perform the work Both Christensen and
Zeffer further admitted that DeVincenzi may have in fact used the language
which he claims to have used
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to Patrick Whitcomb, who also
worked on the crouton machine, the Company re-
quested that Respondent issue him a temporary
work permit, urging that it had spent considerable
time training him and that the seasonal production of
croutons was nearing completion. DeVincenzi agreed
to do so.
With regard to the third employee on the crouton
machine line, Virginia Torres, according to the testi-
mony of Christensen and Zeffer, they specifically
mentioned her by name and requested that she also
be given a temporary work permit, but DeVincenzi
refused to do so. At the hearing, DeVincenzi first
denied that the Company specifically referred to
Torres by name and had requested the permit, but he
later testified that he did not recall any reference to
her by name. The record clearly shows, however, that
prior to the conclusion of the meeting, DeVincenzi,
with Christensen's approval, called Respondent's of-
fice to secure a replacement for Torres' position.
With respect to the placement of a member of Re-
spondent on the wrapping machine, based on the
facts noted above, Respondent inferentially insisted
on a replacement by refusing to permit payment of a
present employee under the terms of its contract. As
a result, Christensen directed Zeffer to make the nec-
essary adjustments to the schedule, but did not at
that time request that DeVincenzi dispatch a replace-
ment. It is undisputed that DeVincenzi did not
threaten the Company with any action if it did not
agree with his position; nor did he specifically re-
quest that the Company discharge or lay off any em-
ployees in order to implement the arrangement.
After the meeting Zeffer informed the foreman of
the crouton machine operation that Respondent's
members would thereafter man that line and directed
him to notify Torres of her layoff.' Subsequently,
when Zeffer also informed the foreman of the wrap-
ping machine operation that one member of Respon-
dent was now to be assigned to that machine when
wrapping whole loaves of bread, the foreman re-
sponded that such action would necessitate the layoff
of a Bakery Worker unit member. Zeffer directed
him to select for lay off the least senior employee on
that line and, thereafter, Georgette Aranda was noti-
fied of her layoff. During the following week
Aranda's position was apparently filled by an indi-
vidual dispatched by Respondent.
The Administrative Law Judge, in dismissing the
complaint in its entirety, found that the Company
had wrongfully assigned the work which was prop-
2 Torres was rehired by the Company I week later for work clearly under
the jurisdication of Bakery Workers
erly within Respondent's jurisdiction based on
Respondent's contract with the Company and the
longstanding agreement with Bakery Workers. He
therefore concluded that Respondent had the right to
seek displacement of the employees then manning
the crouton and wrapping machines. Additionally,
the Administrative Law Judge found that a possible
jurisdictional dispute had been avoided by the volun-
tary adjustment of the parties herein and, applying
the rationale•of the Board's decisions in Brady-Ham-
ilton Stevedore Company 3 and J. L. Allen Co., 4 fur-
ther concluded that there was no cause to find a vio-
lation in the instant case. We disagree, Members
Kennedy and Penello for the reasons set forth below
and Chairman Miller for the reasons stated in his
separate concurring opinion herein.
We, Members Kennedy and Penello, reach the
merits of the allegations of the complaint, even as-
suming that a bona fide jurisdictional dispute existed
herein,' because, as set forth in our dissenting opin-
ions in Brady-Hamilton, supra, and J. L. Allen, supra,
we do not believe that the existence of such a dispute
is a valid defense to an alleged violation of Section
8(a)(3) or 8(b)(2). Upon consideration of the merits,
we cannot agree with the Administrative Law Judge
that Respondent was merely seeking to enforce a
rightful claim to the work involved herein. Contrary
to the Administrative Law Judge, the record evi-
dence does not support the conclusion that such
work clearly fell within the jurisdiction of Respon-
dent. Rather, an examination of Respondent's con-
tract with the Company reveals that that document is
silent with respect to the crouton machine operation
and, although it contains a classification of "wrap-
pers," it does not specifically refer to the wrapping
machine itself or to the manning of that machine
when being used to wrap whole loaves of French
bread. However, the agreement between the Compa-
ny and the Bakery Workers also contains a classifica-
tion of "wrappers." Furthermore, whatever agree-
ment may have been reached between Respondent
and Bakery Workers with respect to the manning of
the wrapping machine, it is clear that the Company
consistently in the past had assigned employees rep-
resented by Bakery Workers to that operation and
that it preferred to continue to assign such work to
these employees. In these circumstances, we con-
clude that employees represented by Respondent
were not clearly entitled to the work involved herein.
198 NLRB No 18 (1972)
199 NLRB 675 (1972)
5 Accordingly, Members Kennedy and Penello find it unnecessary to pass
upon whether a bona fide jurisdictional dispute existed herein However,
they do not necessarily subscribe to the definition set forth by Chairman
Miller in his separate concurring opinion herein as to what constitutes a
bona fide jurisdictional dispute
BAKERY WAGON DRIVERS LOCAL 484 893
We further conclude that the General Counsel has
sustained his burden of proving by a preponderance
of the evidence that Respondent has violated Section
8(b)(2) and (1)(A). In this regard, a careful reading of
the record discloses facts which compel the conclu-
sion that Respondent, through DeVincenzi, sought
and secured the displacement of the employees in-
volved herein, and that it did so solely because of
their lack of membership in Respondent's organiza-
tion. It is clear that during the meeting with the com-
pany officials DeVincenzi telephoned Respondent's
office to secure a replacement for Torres' position.
Thus, even assuming that Christensen and Zeffer did
not in fact request a temporary work permit for Tor-
res, this action by DeVincenzi belies his assertion at
the hearing that he merely sought to have the Com-
pany "live up to our contract" by paying the employ-
ees then assigned to the work in accordance with the
terms of Respondent's contract. For, if in fact that
were Respondent's sole objective, it would be reason-
able to assume that rather than arranging for a re-
placement to fill Torres' position, DeVincenzi him-
self would have proposed that the Company apply
the terms of Respondent's contract to that position.
The record clearly discloses, however, that DeVin-
cenzi did not do so. Rather, in view of the uncontro-
verted testimony of Christensen and Zeffer that De-
Vincenzi rejected an offer to pay those employees
assigned to the disputed wrapping machine work un-
der the terms of Respondent's contract, we find the
inference inescapable that DeVincenzi in fact sought
the displacement of the employees herein involved.
Finally, we find that, even if Respondent merely
intended to enforce the union-security provisions of
its contract, it failed to do so in a lawful manner. In
this regard, we note the absence of any evidence
showing that, at any time prior to receiving a copy of
the charges herein,6 Respondent ever attempted to
ascertain the identity of the specific individuals who
would be affected by its action, to notify them of
their obligations under that provision of the contract,
and to extend to them an opportunity to comply
therewith-steps which Respondent was under a
duty to take prior to seeking enforcement of the
union-security clause.'
6 Upon receipt of the charges herein , Respondent wrote the Company a
letter, dated November 7, 1973, in which it stated , in pertinent part
Without our knowledge, and not as a result of any demand made by us,
several employees were discharged and informed that their discharge
was due to our actions This we categorically deny As evidence of
this , we hereby offer to agree to the non-bargaining unit personnel
involved to continue to do this work providing it is done under all the
terms and conditions of the collective bargaining agreement between
us
7 See , e g, Local 212, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, Ind (North Bros Ford, Inc), 203
In view of the foregoing, we find that Respondent
sought the displacement of the employees herein in-
volved solely because of their lack of membership in
Respondent's organization and that, as a direct con-
sequence of DeVincenzi's request, Torres and Aran-
da were laid off. We conclude, therefore, that Re-
spondent has committed the unfair labor practices
alleged in the complaint.
THE REMEDY
Having found, contrary to the Administrative Law
Judge, that Respondent has engaged in unfair labor
practices, we shall order it to cease and desist there-
from and take certain affirmative action designed to
effectuate the policies of the Act.
We have found that Respondent caused the Com-
pany to discriminate against Virginia Torres and
Georgette Aranda because of their lack of member-
ship in Respondent's organization. We shall there-
fore order Respondent to notify Oroweat Baking
Company, in writing, and furnish copies to the
above-named individuals, stating that it withdraws
its objections to their employment.' We also order
Respondent to make each of the above-named indi-
viduals whole for any losses they may have suffered
by reason of the discrimination against them, by pay-
ment to them of a sum of money equal to the
amounts they would have earned as wages from the
date of the discrimination until their employment
would have been terminated for lawful reasons, or
until 5 days after Respondent notifies Oroweat Bak-
ing Company and the above-named individuals that
it has no objections to their employment. The loss of
earnings will be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), together with interest thereon at
the rate of 6 percent per annum as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent
Bakery Wagon Drivers & Salesmen Local 484, Inter-
NLRB 443 (1973), Philadelphia Sheraton Corporation, 136 NLRB 888, 896
(1962).
8 We find this provision warranted as we conclude that Respondent's
above-quoted letter to the Company is inadequate to remedy the violations
herein We particularly note in this regard that Respondent , in that letter,
merely offered to agree to the assignment of nonbargaining unit employees
to the disputed work , but did not state unequivocally that it has withdrawn
any objections to the continued employment of the individuals against
whom it discriminated Furthermore, we note that Respondent at no time
has notified such employees individually that it has withdrawn such objec-
tions
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, San Fran-
cisco, California, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Oroweat Bak-
ing Company to discharge Virginia Torres and Geor-
gette Aranda in violation of Section 8(a)(3) of the
National Labor Relations Act, as amended, or other-
wise discriminate against the above-named individu-
als, or any other employee because they are not
members of Local 484.
(b) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act, except to the
extent that such rights may be affected by an agree-
ment requiring membership in a labor organization
as a condition of employment, as authorized by Sec-
tion 8(a)(3) of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Make Virginia Torres and Georgette Aranda
whole for any loss of earnings they may have suf-
fered by reason of the discrimination against them as
set forth in the section of this Decision and Order
entitled "The Remedy."
(b) Notify Oroweat Baking Company and the
above-named individuals, in writing, that Respon-
dent has no objections to their employment; also no-
tify the above-named individuals, in writing, that
henceforth it will not coerce or restrain them by un-
lawfully infringing upon the rights guaranteed them
by Section 7 of the Act.
(c) Post at its offices copies of the attached notice
marked "Appendix." 9 Copies of said notice, on
forms provided by the Regional Director for Region
20, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material. Respondent shall also sign copies of
the notice which the Regional Director shall make
available for posting by Oroweat Baking Company,
if it be willing.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
what steps the Respondent has taken to comply here-
with.
CHAIRMAN MILLER, concurring:
I concur in the decision of my colleagues herein,
but since I joined in the majority opinion in Brady-
Hamilton Stevedore Company, 198 NLRB 147
(1972), I think it necessary to set forth my views as to
why the instant case does not present a parallel fact
situation.
In Brady-Hamilton, it will be recalled, we held that
the Board would not and should not "implement our
10(k) determinations via the 8(a)(3) route...." It
necessarily follows, of course, that neither would we
implement such determinations via the 8(b)(2) route,
since Section 8(b)(2), in essence, prohibits a union
from causing or attempting to cause an 8(a)(3) viola-
tion.
As we pointed out in Brady-Hamilton, the jurisdic-
tional dispute provisions of our Act were designed to
provide a means of resolving "the complex issues of
and considerations involved in such disputes and of
the many factors, often closely balanced, supporting
separate and distinct claims to the same work by var-
ious groups."
A true jurisdictional dispute, however, presupposes
a background of custom and practice wherein work
assignments in a given industry have been made to
groups, crafts, or classes of employees who have a
traditional work-related identity. When two or more
such groups, crafts, or classes assert a claim that a
given work assignment is "theirs" by reason of cus-
tom and practice, or by contractual commitments, or
both, then a jurisdictional dispute arises. In our 10(k)
proceedings, we award the work to whichever group,
craft, or class is found to be entitled thereto, on the
basis of a number of factors such as area and indus-
try practice, applicable contract provisions, and rela-
tive efficiency and economy. Our awards are always
made to an identified group, craft, or class, and are
never made to unions qua unions, though often a
craft grouping, particularly in the construction indus-
try, will consist primarily or exclusively of members
of a trade union which has traditionally served as the
representative of the particular craft group (the Car-
penters Union representing carpenters, the Iron
Workers Union representing ironworkers, etc).
In that setting, when we award the work to any
group, craft, or class other than the one to whom the
employer has assigned the work, it becomes apparent
that the employees in the group which we hold does
not have entitlement to the work will lose the assign-
ment and thus suffer at least a temporary interrup-
tion in employment. Their displacement from the
job, needless to say, is not deemed to be a loss of
BAKERY WAGON DRIVERS LOCAL 484 895
employment because of their union membership, but
rather because the craft, group , or class of which they
are a part is not deemed entitled to the work on the
basis of our 10(k) standards.
Since the proper application of our 10(k) standards
is regularly the very heart of the jurisdictional dis-
pute , and is often considerably less clear prior to the
litigation than with the benefit of the hindsight avail-
able after our Decision has issued , it would be the
most absurd kind of injustice for us to condemn as
8(b)(2) conduct the assertion of a bona fide claim or
demand by a given group class, or craft that the work
in dispute be assigned to them rather than to some
other identifiable group. And, as in Brady-Hamilton,
when a hapless employer caught between two such
bona fide competing jurisdictional claims makes his
own good-faith decision as to which claim is the
more meritorious and assigns the work accordingly,
such an assignment has never been deemed by this
Board to be 8(a)(3) conduct, although any reassign-
ment resulting from an employer' s decision as be-
tween such rival claims obviously results in an inter-
ruption of employment for the members of the
group, craft, or class of unsuccessful claimants. That
was the underlying reasoning for our refusal to find
an 8(a)(3) violation in the Brady-Hamilton case.
But the warp and woof of the above-described fab-
ric of the law consist of the basic bona fide jurisdic-
tional claims by groups , classes, or crafts having an
arguable traditionally maintained identity with cer-
tain types of work. Such disputes are not in the na-
ture of claims by rival labor organizations for the
support of the same employees, nor for a cornering
of the hiring market by a monopolistically motivated
union.
For when rival unions compete for the support of a
given group of employees, a question concerning rep-
resentation arises, to be resolved by a proper test of
majority support freely to be evidenced by the em-
ployees' own choice . In that setting , neither unions
nor employers may legally insist that only members
of one union be afforded employment at the expense
of members of the rival union.
And if a union attempts to monopolize the hiring
market for its members, solely on the basis of their
union membership , a violation of Section 8(b)(2) is
established and an employer acquiescing in such a
demand violates Section 8(a)(1) and (3) of the Act.
In the instant case , therefore, we must determine
whether the Respondent Union was asserting a claim
to the work here in issue as a representative of an
identifiable group, craft, or class having an arguably
traditionally maintained identity with the type of
work in issue, or whether, on the other hand, Re-
spondent was either seeking to force employees into
membership or seeking to control hiring on the sole
basis of union membership.
In my view, it cannot fairly be said here that Re-
spondent Bakery Wagon Drivers & Salesmen Local
484, of the Teamsters Union was representing any
identifiable group, craft , or class of employees which
had a traditional work-related identity with the type
of work in issue . The Teamsters Union may have a
tradition of representing groups of employees regu-
larly engaged in truckdriving and related work, but it
can hardly be said that wrapping bread or making
croutons is the traditional function of teamsters,
truckdrivers, or chauffeurs, at least when those words
are used to identify a group descriptively rather than
as part of the title of a labor organization.
Hence the demand here, as I view it , was, as the
majority correctly finds simply a demand for prefer-
ence in employment in the classifications involved
solely on the basis of union membership , rather than
the kind of bona fide jurisdictional claim by a group
or class of employees having a traditional work-relat-
ed identity-which later claim would be subject to
our jurisdictional dispute processes.
For these reasons, I join my colleagues and find
Brady-Hamilton and like precedent inapposite.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Orow-
eat Baking Company to discharge Virginia Tor-
res and Georgette Aranda in violation of Section
8(a)(3) of the National Labor Relations Act, as
amended , or otherwise discriminate against the
above-named individuals, or any other employ-
ee, because they are not members of Local 484.
WE WILL NOT in any like or related manner
restrain or coerce employees of Oroweat Baking
Company in the exercise of any right guaranteed
under Section 7 of the Act, including the right to
refrain from engaging in any or all of the activi-
ties guaranteed thereunder, except to the extent
that such right may be affected by an agreement
requiring membership in a labor organization as
a condition of employment, as authorized in
Section 8(a)(3) of the Act.
WE WILL make whole the above-named indi-
viduals for any loss of earnings they may have
suffered by reason of our discrimination against
them.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BAKERY WAGON DRIVERS
& SALESMEN LOCAL 484,
INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF
AMERICA
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judge: This case
came before me on March 6, 1974, at San Francisco, Cali-
fornia, pursuant to a charge filed on November 6, 1973,1 by
Kathleen Chase, an individual, and a complaint issued on
January 18, 1974, on behalf of the General Counsel by the
Regional Director Region Twenty of the National Labor
Relations Board, herein called the Board, against Bakery
Wagon Drivers & Salesmen Local 484, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Respondent, Re-
spondent Union, or Teamsters, alleging that Respondent
Union about October 26, 1973, caused or attempted to
cause Oroweat Baking Company, herein called the Em-
ployer or Company, to discriminate against Virginia Torres
and Georgette Aranda by discharging them because they
were not members of the Union in violation of Section
8(b)(2) of the Act. Respondent Union in its answer while
admitting certain allegations of the complaint denied that
it had engaged in any unfair labor practices.
Upon the entire record 2 including my observation of the
demeanor of the witnesses, and after careful consideration
of the briefs filed by the parties, I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE COMPANY
It is alleged in the complaint, admitted in the answer,
and I find that the Company is a California corporation
with offices in South San Francisco, California, and is en-
gaged in nonretail baking and wholesale distribution of
bakery products; that the Company during the past year
purchased and received goods valued in excess of $50,000
directly from suppliers located outside the State of Califor-
nia; and that the Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, the answer admitted , and I find
1 Served on Respondent Union on November 7, 1973
2 Respondent's counsel has notified all parties that references to Al Bryan
in the record should be corrected to read Al Meyers The transcript is here-
by corrected in this regard
that Respondent Union is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE EVIDENCE
The evidence shows that on October 26, 1973,3 Emil De-
Vincenzi, the Union' s assistant business agent , was in-
structed by Wendell J. Phillips, the Union's secretary and
executive officer, to proceed to the Company' s premises to
check on a complaint that certain work under the
Company's contract with the Union was being performed
by employees who were members of another union, Local
No. 24 Bakery and Confectionery Workers' International
Union of America, AFL-CIO. 4 DeVincenzi, following in-
structions, met with Jonas V. Christensen, the Company's
general manager , and Paul Zeffer, the plant superinten-
dent. The manning of the crouton machine and that of the
wrapping machine on the bread production line were
among the subjects discussed. It was DeVincenzi's position
that the work at the crouton machine came under the
Union's contract with the Company.5 After a discussion of
30 to 45 minutes, Christensen and Jeffers agreed. DeVin-
cenzi also contended that there was a longstanding agree-
ment that one of the men on the wrapping machine, when
it was wrapping whole loaves of bread, should be under the
Union's jurisdiction. Christensen and Jeffers also agreed to
this.
The credited and uncontradicted testimony of Phillips
shows that the above contentions of DeVincenzi have been
for many years honored by Local 24 and Oroweat's man-
agement .6 As a result of the DeVincenzi conference de-
scribed above, changes were made on the crouton machine.
Walter Mountain was retained on the crouton machine be-
cause he was the subject of a special agreement for many
years, however, he received thereafter the higher wages un-
der the Teamsters contract. Patrick Whitcomb, because of
the Company's desire to retain him for a month in order to
train a replacement, was given a special permit by the Re-
spondent Union for a period of 4 weeks. He was paid the
higher Teamsters wages during this period and he was per-
mitted to continue his membership in Local 24. Virginia
Torres, the other member of the crouton crew, was laid
off' and apparently replaced on the crouton machine by a
person dispatched by the Teamsters. With regard to the
wrapping machine, Georgette Aranda was laid off and ap-
parently replaced by a person dispatched by the Teamsters.
Phillips further testified that, since the above changes
have been made, there has been no objection from Local
24, and that after the charge was filed in the instant case he
forwarded Respondent's Exhibit 1 to the Company in
which Respondent Union offered no objection to the con-
tinued employment of the "non-bargaining unit personnel"
provided it was done under all of the terms and conditions
of the Union 's agreement with the Company.
3 Hereafter all dates refer to 1973 unless otherwise specified
4 The Company currently and for many years has maintained labor agree-
ments with Respondent Union and Local 24 Each of the agreements in-
cludes a union shop proviso
'The crouton machine was manned by a crew of three
6 Christensen has held current this current position for about 1 year
r She was rehired by the Company in another capacity a week later for
work under the jurisdiction of Local 24
BAKERY WAGON DRIVERS LOCAL 484 897
Analysis and Conclusions
The General Counsel views the layoff of Torres and Ar-
anda as violative of Section 8(b)(2) of the Act in that the
Union caused or attempted to cause the Employer to dis-
criminate against them because of their nonmembership in
the Teamsters , therefore , the discharges were in violation
of Section 8(a)(3) of the Act. I disagree . The General
Counsel in his brief relies quite heavily on Parisian Baker-
ies, Inc. S I find that case completely inapposite . There, the
union dispatched a nonmember for a job and sought to
replace him with an out -of-work member after he had been
employed for almost 6 months.'
In the instant case , I am convinced by the evidence that
the Company wrongfully assigned members of Local 24 to
do work under the Respondent Union 's jurisdiction . Clear-
ly, the Union had a right , indeed an obligation , to require
compliance with their labor agreement . Displacement of
members of Local 24 under these circumstances cannot
under any rationale constitute a violation of the Act. Espe-
cially in view of the testimony by Plant Manager, Paul
Zeffer that the members of one union did not interchange
with the other union.10
I regard the Board 's rationale in the recent decisions in
s 169 NLRB 1047 (1968)
9 Six months constituted a probationary period
10 The plant employed approximately 80 persons under jurisdiction of
Local 24 and about 50 under the Respondent Union ' s jurisdiction
Brady-Hamilton Stevedore Company," and J. L. Allen 12 to
be determinative of the issues in this case . In those cases,
the Board held that where a bona fide jurisdictional dispute
exists resort to Section 8(a)(3) for remedial action is unwar-
ranted.
In the instant case , there has been a wrongful assignment
of work which the parties have adjusted . Thereby, a possi-
ble jurisdictional dispute by the peaceful and voluntary
agreement of all parties has been avoided . I see no cause
for finding a violation of the Act under these circum-
stances.
In view of my conclusions above , I find that the General
Counsel has failed to sustain the allegations of the com-
plaint by a preponderance of the credible evidence. Ac-
cordingly , the complaint is dismissed in its entirety.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act , I hereby
make the following recommended:
ORDER 13
I recommend that the complaint be dismissed in its en-
tirety.
11 198 NLRB 147 (1972)
^i 199 NLRB 675 (1972)
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes