Chauffeurs, Teamsters and Helpers, Local 331

National Labor Relations Board - Board Decisions

Nov 28, 1962

139 N.L.R.B. 1391 (N.L.R.B. 1962)

CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 331 1391
discretionary assertion of jurisdiction , based upon present standards , has been found
with respect to the 8 ( b) (4) (A) portion of this consolidated case, no justification can
be claimed for the Agency 's assertion of derivative or ancillary jurisdiction over the
charged 8 (b) (7) (C) violation.
RECOMMENDATION
Since the present record fails to establish that the business operations of various
persons directly affected by certain challenged conduct reveal their combined par-
ticipation in commerce sufficiently to warrant the Board's discretionary exercise of
jurisdiction, under presently applicable jurisdictional standards , I recommend that
the consolidated complaint be dismissed.
Chauffeurs, Teamsters and Helpers , Local 331, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America and Bulletin Company. Case No. 4-CD-65.
November 28, 1962
DECISION AND ORDER QUASHING NOTICE OF HEARING
UNDER SECTION 10(k) OF THE ACT
This proceeding arises under Section 10(k) of the Act, which
provides that, "whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph (4) (D)
of Section 8(b) the Board is empowered and directed to hear and
determine the dispute out of which such unfair labor practice shall
have arisen...."
On February 28, 1961, Bulletin Company, herein called the Bul-
letin, filed with the Regional Director for the Fourth Region a charge
alleging that Chauffeurs, Teamsters and Helpers, Local No. 331, In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Local 331, in violation of Section
8(b) (4) (i) and (ii) (D) of the Act, had induced and encouraged em-
ployees of the Bulletin to engage in a strike or a refusal to work or to
perform services, with the object of forcing or requiring the Bulletin
to assign certain work to members of Local 331 rather than to members
of Newspapers and Magazine Chauffeurs and Handlers, Local No.
628, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called Local 628.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, as
amended, the Regional Director investigated the charges and provided
for an appropriate hearing upon due notice to all the parties. The
hearing was held before Joseph I. Nachman, hearing officer, on June 1,
1961. All parties appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and to
adduce evidence bearing on the issues. The rulings of the hearing
officer made at the hearing are free from prejudicial error and are
139 NLRB No. 117.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby affirmed. Both the Bulletin and Local 331 filed briefs which
have been duly considered by the Board.
Upon the entire record herein , the Board makes the following
findings :
1. Jurisdictional facts
The Bulletin is engaged in the publication of an afternoon daily
and Sunday newspaper in Philadelphia , Pennsylvania . Its papers,
which have a very substantial circulation , are distributed by it in
Pennsylvania, New Jersey, Delaware, and other States. The Bulletin
obtains from out-of -State sources in excess of $100,000 worth of news-
print each year. We find that the Bulletin is engaged in commerce
within the meaning of the Act and that it will effectuate the policies
of the Act to assert jurisdiction herein.
2. The labor organizations involved
Local 331 and Local 628 are both labor organizations within the-
meaning of the Act.
3. The dispute
a. The facts as disclosed at the hearing
The drivers employed by the Bulletin are covered by a collective-
bargaining contract between Local 628 and the Philadelphia News-
paper Publishers Association.
Up until the early part of 1960, the Bulletin had distributed its
newspapers in the Atlantic City, New Jersey, area through Coast
News Distributors , herein called Coast News , an independent firm en-
gaged in the newspaper circulation business . The drivers employed
by Coast News are members of Local 331 and are covered by a collec-
tive-bargaining contract with that concern. Under the arrangement
in effect up until early 1960, a driver employed by the Bulletin, a mem-
ber of Local 628, transported the newspapers in bulk to Coast News'
place of business in Atlantic City, where the papers were purchased
by Coast News . Coast News then handled all the local distribution,
making deliveries both to retail sales points and to newsboys for home
delivery.
It has been practice of the Bulletin itself to handle the distribution
of papers to newsboys for home delivery as soon as the routes have
been sufficiently built up. Pursuant to this practice , the Bulletin, in
February 1960, commenced establishing branch supply points in At-
lantic City , where its driver, a member of Local 628, delivered papers
to newsboys for their home delivery routes. This change did not affect
Coast News' distribution of papers to retail supply points. Coast
CHAUFFEURS , TEAMSTERS AND HELPERS , LOCAL 331 1393
News continued to deliver to these retail outlets as before, utilizing
its employees who were members of Local 331.
In February 1961 the Bulletin began expanding the number of
branch supply points to which its driver delivered directly to the
various newsboys the papers for their home delivery routes . After a
few months , the Bulletin itself, with a Local 628 driver , was taking
care of virtually all of its home delivery circulation . The Bulletin
driver customarily spent 2 to 3 hours making his deliveries in the
Atlantic City area, and could complete the round trip from Philadel-
phia, including the making of Atlantic City deliveries , within 7
hours.
On February 14, 1961, Kenneth Souser, attorney for the Bulletin,
conferred with representatives of Local 331 in the presence of rep-
resentatives of Local 628 about the changeover in its home delivery
distribution system at Atlantic City. Vice President and Business
Manager James Smith, speaking for Local 331, asked whether the
Bulletin would be willing to reconsider its decision and resume its
former arrangement with Coast, News, pointing out that the change
was resulting in a reduction of employment for members of Local 331.
After Souser explained the Bulletin's need for making the change,
Smith renewed his request that the Bulletin continue doing business
as it had in the past, again stressing the seriousness to it members of
the loss of i his employment and the desire of Local 331 to protect these
jobs for its members. The Bulletin , however, did not comply with
this request.
Beginning on Sunday , February 26, 1961, representatives of Local
331 picketed various of the Bulletin's branch supply points when the
truck transporting the papers arrived there , and urged the driver not
to make the deliveries . On that day , the Bulletin 's papers were being
delivered in Atlantic City by a United News Company truck driven by
Saxton, a Local 628 member . When Saxton attempted to make a
delivery at Obsecon Boulevard and Ohio Avenues , he was met by
Joyce, a truckdriver for Coast News and a steward in Local 331, and
by business manager Smith of Local 331 . They had signs stating that
the "Bulletin" was "Unfair to Organized Labor, Teamsters and Chauf-
feurs Union Local 331." After these two men had a conversation with
Saxton, he made a telephone call to a Mr. Bell of Local 628. After
talking with Bell, Saxton , with one exception , refused to drop off
any papers at any branch supply point at which pickets were present.
Eugene Graviss , a circulation supervisor for the Bulletin , and another
circulation official , met the truck at the first stop and followed the
driver in a car as the driver attempted to make his deliveries at other
branch supply points. The Local 331 pickets followed the truck in an
effort to dissuade the driver from dropping off the papers . When the
driver refused, Graviss, himself , put off the papers in one or two in-
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances. The driver did agree to drop off the papers down the street
from various supply points at a time when no pickets were present.
The picketing continued for the next few days. Local 628 drivers
continued to respect the picket line. In a number of instances the Lo-
cal 331 pickets were successful in dissuading the Bulletin's drivers,
all of whom were members of Local 628, from making their deliveries
at branch supply points. On one occasion on which Bulletin driver
Lonsdale was confronted by pickets as he attempted to make a delivery
at a branch supply point located adjacent to a Chevron gas station, he
asked "what it was all about." One of the pickets, after giving his
name and identifying himself as the business manager of Local 331,
stated, "The Bulletin is taking away work that we have had for a
good many years, and that is why 331 is picketing the Bulletin."
On March 7, Local 331 agreed to withdraw the pickets pending the
outcome of this proceeding. Local 331 admits responsibility for the
actions of the pickets.
b. Proceedings subsequent to the hearing
On December 27, 1961, Local 331 filed a motion to quash notice of
Section 10(k) hearing and to dismiss Section 8(b) (4) (D) charges on
the ground that the record does not reveal competing claims between
the two Locals, or two competing groups of employees, for the dis-
puted work, as required by the Board's decision in the Safeway Stores
case.' The Bulletin duly filed an opposition to Local 331's motion of
December 29, 1961. In March 1962, the Board issued an order to show
cause and, in response thereto, Local 628 filed a statement of position
in which it expressly stated that it does not now and never has claimed
any work that has been performed by employees represented by Local
331. On April 2, 1962, the Bulletin filed a reply to Local 628's state-
ment of position in which it in effect challenged Local 628's good faith
in disclaiming the work in question, and requested a reopening of the
record herein.
c. The positions of the parties
Local 331 contended that the picketing here involved was not for
any purpose proscribed by Section 8(b) (4) (D) of the Act and that
the case does not involve a "jurisdictional dispute" within the mean-
ing of Section 8(b) (4) (D) of the Act, since its objective was not to
force the Bulletin to assign the Atlantic City home delivery distribu-
tion work to its members but rather to induce the Bulletin to return
to its former method of home delivery distribution through the use
of Coast News.
'Highway Truckdrivers & Helpers, Local 107, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Independent ( Safeway Stores, In-
corporated ), 134 NLRB 1320, dated December 15, 1961.
CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 331 1395
The Bulletin takes the position that regardless of the fact that Local
331 on the surface was seeking by its picketing to induce the Bulletin
to return to its former system of making deliveries to its home delivery
customers in the Atlantic City area through Coast News, Local 331's
conduct did come within Section 8(b) (4) (D) of the Act because the
underlying purpose of the picketing was to obtain the assignment of
the work in question to its members. The Bulletin argues that the
Safeway decision is inapplicable under the circumstances of this case.
Local 628 takes the position that it is not claiming and never has
claimed the work in question for its members and that consequently
no jurisdictional dispute exists in the case.
d. Conclusions concerning the applicability of the Statute
In sum, the record shows that for some years the Bulletin had
utilized the services of a contract news distributor, Coast News, to
effect the distribution of its papers to home delivery customers in the
Atlantic City area. Under the previous system, the papers were de-
livered to the newsboys having home delivery routes by Coast News'
drivers, who were members of Local 331. By February 1961, the
Bulletin had largely discontinued using Coast News' services in con-
nection with the delivery of papers for home delivery routes, and
was having its own driver, a member of Local 628, make these deliv-
eries. To the extent that the Local 628 driver spent time making de-
liveries to branch supply points formerly serviced by Coast News, a
Local 331 driver suffered a loss of employment. Protesting this loss
of employment, representatives of Local 331 picketed the Bulletin's
Local 628 driver as he approached the branch supply points in the
Atlantic City area to perform work which had formerly been done
by a member of Local 331.
We believe that the underlying rationale leading to the Board's
decisions in Franklin Broadcasting Company (Radio Station WHIN),
126 ULRB 1212, and Gordon Broadcasting of San Diego, Inc., d/b/a
Radio Station KSDO, 127 NLRB 1070, is applicable here. As a
result of the Bulletin's decision to cease contracting out the Atlantic
City home delivery distribution work, an employee of Coast News suf-
fered a loss of employment. The Bulletin alone had it within its power
to bring about the restoration of this employment by reverting to its
former method of handling the distribution of papers for home
delivery.
Thus, in this case the dispute is not the traditional jurisdictional
dispute between two unions wherein each union wishes to have certain
duties assigned to its members. Rather, the dispute concerns the
Bulletin's termination of the services of Coast News and the resulting
loss of employment by a member of Local 331. Local 331's sole oh-
4372010-63-vol. 139-89
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jective in picketing was to regain for its member the employment
which he lost as a result of the Bulletin's decision to cease contracting
out the work. As the Board held in the Franklin and Gordon cases,
Congress did not intend in Section 8(b) (4) (D) to proscribe picket-
ing for such objectives.
11,Thile the loss of employment by a Local 331 member in this case is
attributable only indirectly to the action of the Bulletin as a result of
its discontinuing its contract with Coast News, the principle of the
Franklin and Gordon cases is nevertheless applicable. As found
above, 1 he picketing herein involved was not engaged in, in the course
of a work assignment dispute, within the meaning of Section
8(b) (4) (D) and 10(k), but was rather an attempt to regain employ-
ment lost by a Local 331 member as a result of the Bulletin's action
in terminating its contract with Coast News. As far as this Local
331 member is concerned, his loss had as serious consequences to him
whether it resulted from the decision of his employer, Coast News,
or from the decision of the Bulletin to terminate Coast News' con-
tract. Under the circumstances, we can perceive no valid reason for
not according him and his representative the same right to protest
his loss of employment to the party really responsible therefor as
was recognized to exist in the discharged employees and their repre-
sentatives in the Franklin and Gordon cases?
Upon the basis of the foregoing, we conclude that the dispute in
this case is not over the assignment of work within the meaning of
Section 8(b) (4) (D). It is, therefore, not a dispute within the mean-
ing of Section 10(k). Accordingly, we shall quash the notice of
hearing.
[The Board quashed the notice of hearing.]
MEMBER BROWN, concurring :
I concur with Chairman McCulloch and Member Fanning, but only
as to the result reached.
MEMBERS RODGERS and LEEDOM, dissenting:
2In view of the fact that we are predicating our decision herein on the Franklin and
Gordon decisions , we find it unnecessary to reopen the hearing to Inquire into the bona
fides of Local 628's disclaimer of interest Accordingly, we deny the Bulletin ' s request in
this regard We think the Instant record affords an adequate basis, however , for finding
a lack of competing claims for the work in dispute
Member Fanning does not agree with the contention of the dissenting Members that
the majority decision in Local 991 , International Longshoremen 's Association, et at
(Union Carbide Chemical Company ), 137 NLRB 750, in which he participated, compels
a finding that a jurisdictional dispute exists herein . In this situation Local 331 is seek-
ing to compel Bulletin to go back to its old mode of operations ; it is not seeking to
compel Bulletin to hire its members In Union Carbide, on the other hand, the ILA, while
protesting the loss of work suffered by its members as a result of Union Carbide's deci-
sion to change its mode of operation , sought to compel Union Carbide to hire its members
to perform the work under the changed method of operation.
CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 331 1397
We dissent from our colleagues' decision to quash the notice of
hearing in this case.
We do not agree that the principles of the Franklin Broadcasting
and Gordon Broadcasting cases 3 are applicable to the facts herein.
Unlike such cases, this is not a case in which a union that represents
an employer's employees engages in a strike in protest against that
employer's unilateral action in abolishing the jobs of those represented
employees and in thus discharging them. Here, Local 331 represents
none of Bulletin's employees. Moreover, Local 331's picketing is not
concerned with the abolition of any jobs or the discharge of any em-
ployees by the Bulletin. Instead, Local 331's picketing is concerned
with a management decision by the Bulletin to conduct certain op-
erations with its own drivers, who are represented by Local 628,
rather than with driver-employees of an independent contractor.
The facts here are, in our opinion, essentially like the facts in Union
Carbide Chemical Company, supra (see footnote 2), in which Members
Fanning and Brown agreed with us that there existed a jurisdictional
dispute cognizable under Section 10 (k). Thus, both the Bulletin and
Union Carbide utilized an independent contractor to perform certain
operations connected with the delivery of their products; both the
Bulletin and Union Carbide changed their method of operation, so
as to utilize their own employees to perform work which under the
prior method had been performed by the independent contractor's
employees; the two groups of employees involved were represented
by different labor organizations; and in both cases the representative
of the independent contractor's employees engaged in picketing to
force reassignment of the work in question to the employees it repre-
sented. In our opinion, Member Fanning attempts to distinguish this
case from Union Carbide on the basis of an immaterial factual differ-
ence. The question to be determined is whether the picketing Union
is seeking to force a reassignment of work; and it is of no consequence
whether, as here, that Union is seeking to have the work reassigned
to presently employed employees of an independent contractor, or
whether it is seeking to have it reassigned to employees who are to be
hired for the purpose of performing such work. In either case, the
Union's object is to cause work to be taken from one group of em-
ployees and to be given to another-an object clearly proscribed by
Section 8 (b) (4) (D).
On these striking parallel facts, and in conformity with the Union
Carbide decision, we would find that there is a jurisdictional dispute
cognizable under Section 10(k). Moreover, although our colleagues
state they are not relying on the asserted disclaimer by Local 628, the
representative of the Bulletin's employees, such a disclaimer, even
a Franklin Broadcasting Company Radio Station WMIN, 126 NLRB 1212 ; Gordon
Broadc,agting of San Diego, Inc., d/b/a Radio Station KSDO , 127 NLRB 1070.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if established as bona fide, would not warrant quashing the notice of
hearing. There is no evidence or contention that the affected employ-
ees of the Bulletin have disclaimed an interest in the work; and, in
any event, neither Congress, nor the Supreme Court in the CBS case,
intended that unions be given carte blanche to divide up an employer's
operations as they wish, and that employers be denied the benefits of
a determination under Section 10 (k) .4
In view of all the foregoing, therefore, we would proceed to deter-
mine the dispute which exists in this case.
4N.L.R.B. v. Radio and Television Broadcast Engineers Union , Local 1212 ( Columbia
Broadcasting System), 364 U.S. 573; see also the dissenting opinion in Sheet Metal
Workers International Association , Local Union No. 272; Sheet Metal Workers Inter-
national Association, AFL-CIO ( Valley Sheet Metal Company), 136 NLRB 1402.
J & H Food Inc., Halan Enterprises , Inc.; Jack-Gregg, Inc.,
Halan Enterprises , Inc.; Halan 's Inc., Halan Enterprises , Inc:;
Halan 's Waukesha, Inc., Halan Enterprises, ,Inc. and Anialga
mated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, Retail Local 73. Cases Nos. 13-CA-4839-1, 13-CA-
4839-2, 13-CA-4839-3, and 13-CA-4839-4. November 29, 19618
DECISION AND ORDER
On September 5,1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents 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 attached Intermediate Report. There-
after, the General Counsel and the Charging Party filed exceptions
to the Intermediate Report and supporting briefs.
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 McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, and the entire record in the case, including the exceptions
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.
139 NLRB No. 125.