Chauffeurs, Teamsters & Helpers, Local No 150

National Labor Relations Board - Board Decisions

Sep 7, 1976

225 N.L.R.B. 1183 (N.L.R.B. 1976)

CHAUFFEURS, TEAMSTERS & HELPERS, LOCAL NO 150 1183
Chauffeurs, Teamsters & Helpers , Local No. 150, In-
ternational Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America and United
Grocers, Ltd., d /b/a Bert McDowell Company and
International Longshoremen's and Warehousemen's
Union, Warehouse Union Local 17. Case 20-CD-
491
September 7, 1976
wholesale sale of groceries, and that during the past
fiscal or calendar year the Employer purchased and
received goods valued in excess of $50,000 from sup-
pliers located outside the State of California. Accord-
ingly, we find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act, and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by United Grocers, Ltd., d/b/a
Bert McDowell Company, herein called Employer,
alleging that Chauffeurs, Teamsters & Helpers, Local
No. 150, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
herein called Teamsters, and International Long-
shoremen's and Warehousemen's Union, Warehouse
Union Local 17, herein called ILWU, each violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or re-
quiring the Employer to assign certain work to em-
ployees represented by it rather than -to employees
represented by the other union.
Pursuant to notice, a hearing was held before
Hearing Officer Ray Arrington on May 20, 1976.
Said hearing was continued before Hearing Officer
Walter L. Kintz on June 11 and 14, 1976. All parties,
including the Employer, Teamsters, and ILWU, ap-
peared at the hearing and were afforded full opportu-
nity to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence bearing on the issues.
Thereafter, the Employer, Teamsters, and ILWU
filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officers made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer is a California corporation engaged in the
The parties stipulated and we find, that Chauf-
feurs, Teamsters & Helpers, Local No. 150, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, and International
Longshoremen's and Warehousemen's Union, Ware-
house Union Local 17, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
The situs of the dispute is the loading dock at the
Employer's distribution warehouse in Sacramento,
California. Employees represented by ILWU fill or-
ders from customers in the warehouse, and then
bring the goods making up each order to the loading
dock on pallets. Teamsters-represented employees
then load the pallets into trucks parked at the loading
dock for shipment to customers. Prior to 1970, how-
ever, 90 percent of the goods were moved from the
warehouse to the dock by means of a "chain line."
Under this system, ILWU-represented order fillers in
the warehouse would place goods into carts, which
they hooked onto a chain circulating around the pe-
rimeter of the warehouse. Then, an employee repre-
sented either by ILWU or Teamsters would pull the
cart off the chain at the loading dock, and Team-
sters-represented employees would load the ship-
ments into waiting trucks. During this pre-1970 peri-
od, the remaining 10 percent of the goods were
brought to the loading dock on pallets by ILWU-
represented employees, and were loaded onto the
trucks by employees represented by Teamsters using
electric pallet jacks.
In early 1970, the Employer instituted the present
system, under which all goods are moved from ware-
house to loading dock on pallets. Between that time
and May 1971, employees represented by ILWU
stacked and unstacked pallets on the loading dock
with forklifts for loading into the trucks by Team-
sters-represented employees. Employees represented
by Teamsters did not have forklifts assigned to them
for use until May 1971.
225 NLRB No. 169
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The current dispute originated in 1971, over which
set of employees, those represented by Teamsters or
ILWU, should stack and unstack palletized goods on
the loading dock using forklifts. Sometime in 1971, a
verbal agreement was apparently reached between
Teamsters and ILWU, and at least acquiesced in by
the Employer, to solve the problem. ILWU agreed to
permit Teamsters-represented employees to move
pallets half the length of a pallet onto the loading
dock, to give these employees greater maneuverabili-
ty to stack, unstack, and load the last few pallets into
a truck. Otherwise, ILWU-represented employees
were to stack and unstack pallets on the loading dock
when the use of forklifts was necessary.' Neverthe-
less, employees represented by Teamsters were dis-
satisfied with this arrangement and intermittently
stacked and unstacked palletized goods on the load-
ing dock using forklifts. Generally, ILWU-repre-
sented employees protested against these intrusions
into what they considered their work jurisdiction.
About 2 years before the hearing in this case, the
Employer started a "paper program," under which it
picked up bales of cardboard paper from member
accounts using pallets. The pallets containing the
cardboard paper would be transported by truck to
the Employer's warehouse, where the paper would be
transferred to a truck from a paper company. Both
employees represented by ILWU and Teamsters
claimed the right to stack and unstack the pallets
containing the cardboard bales, as well as resulting
empty pallets. Although record testimony conflicts
somewhat on this point, it appears that ILWU-repre-
sented employees performed this work for the most
part. However, on February 25-26, 1976, ILWU-rep-
resented employees struck the Employer to protest
the stacking and unstacking of empty pallets by em-
ployees represented by Teamsters using forklifts.
Though the strike ended after 2 days, no final resolu-
tion of the dispute was achieved.
On March 22, 1976, at the direction of the secre-
tary-treasurer of Teamsters Local 150, employees
represented by Teamsters began to stack and unstack
all pallets on the loading dock where forklifts were
needed. The Teamsters union steward and other
union members threatened the Employer with a
strike by the Union, unless Teamsters-represented
employees were permitted to continue to perform the
disputed work.
The Employer filed the charge in the instant case
on April 6, 1976.
1 It is undisputed that employees represented by Teamsters were permit-
ted to stack and unstack pallets inside trucks using forklifts, and that Team-
sters-represented employees could also stack and unstack pallets by hand on
the loading dock
B. The Work in Dispute
The work in dispute is: (1) The operation of fork-
lifts in the stacking and nonstacking of palletized
goods in the shipping or loading dock area of the
Employer's warehouse; (2) the operation of forklifts
in the stacking and nonstacking of pallets containing
cardboard bales in the shipping or loading dock area
of the Employer's warehouse; and (3) the operation
of forklifts in the stacking and nonstacking of empty
pallets in the shipping or loading dock area of the
Employer's warehouse.
C. Contentions of the Parties
The Employer and Teamsters contend that the
work in dispute should be awarded to employees rep-
resented by Teamsters for reasons of efficiency and
safety. Teamsters also points out that employees rep-
resented by it perform the same type of work in dis-
pute in this case at a Safeway warehouse in the area,
even though ILWU-represented employees work in
that warehouse . Teamsters also asserts that the Em-
ployer prefers that the employees represented by it
do the disputed work.
ILWU, on the other hand , takes the position that
employees represented by it should be assigned the
work in question based on past practice, the 1971
verbal agreement between it and Teamsters , and the
Employer's original satisfaction with the 1971 agree-
ment between the two unions.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and
that there is no agreed-upon method for the volun-
tary settlement of the dispute.
No party to this proceeding takes the position that
ajurisdictional dispute does not exist, or that there is
an agreed-upon method for the voluntary settlement
of the dispute. As stated above, ILWU-represented
employees struck the Employer for 2 days in Febru-
ary 1976 in an effort to compel the Employer to
cease permitting Teamsters-represented employees to
do certain work in dispute. Also, beginning in March
1976, employees represented by Teamsters com-
menced doing all the work in dispute, and represen-
tatives of Teamsters informed the Employer that
they would continue to perform the work under
threat of strike. Based on the foregoing, and the rec-
ord as a whole, we find that an object of both
ILWU's actions and Teamsters' actions was to force
CHAUFFEURS, TEAMSTERS & HELPERS , LOCAL NO 150 1185
the Employer to assign the disputed work to employ-
ees represented by it to the exclusion of employees
represented by the other union. Accordingly, we find
that reasonable cause exists to believe that ILWU
and Teamsters both have violated Section 8(b)(4)(D)
of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors.
3. Area and industry practice
Teamsters contends that a Safeway distribution
warehouse in the area employs employees repre-
sented by it and by ILWU for the same tasks which
they perform for the Employer, i.e., ILWU-repre-
sented employees fill orders in the warehouse and
Teamsters-represented employees load the trucks on
the dock, and that employees represented by Team-
sters do the work in dispute in this case at that loca-
tion. The record supports this contention. However,
we do not regard the practice followed by a single
similar employer in assigning such work indicative of
area or industry practice. As a result, the evidence
relating to area and industry practice is inconclusive.
1. Collective-bargaining agreements
All parties to this proceeding agree that neither the
collective-bargaining agreement between the Em-
ployer and Teamsters nor between the Employer and
ILWU provides any assistance in determining this
dispute.
2. Skills and safety
There is no dispute that employees represented by
both Teamsters and ILWU possess the necessary
skills to stack and unstack pallets by forklift. It does
not appear that either set of employees is more
skilled in performing the disputed work than the
other.
The Employer and Teamsters, however, argue that
the factor of safety favors assigning the work in ques-
tion to employees represented by Teamsters. Thus, it
is asserted that it is unsafe for employees represented
by Teamsters to stack and unstack pallets resting
partly on the metal plate running between the truck
and the loading dock and partly on the loading dock,
because a dangerously tilted or unstable pallet may
result, and because stacking and unstacking done in-
side a truck is done in less light than on the dock.
However, neither the Employer nor the Teamsters
produced any documentary evidence showing that
any employee represented by Teamsters had been in-
jured as a result of working under such conditions.
Furthermore, as discussed more fully below, the
Teamsters-represented employees whose job is to
load the trucks at the dock have always had the op-
tion of requesting an ILWU-represented worker to
stack and unstack pallets on the dock at their direc-
tion, rather than doing it themselves in the truck.
Therefore, we do not find that safety considerations
are helpful in deciding which set of employees should
perform the work in dispute.
4. Efficiency and economy of operations
The Employer and Teamsters take the position
that it is more efficient for employees represented by
Teamsters to do all the stacking and unstacking by
forklift in the loading dock area, rather than for
ILWU-represented employees to perform this task.
Witnesses for the Employer and Teamsters testified
that delays often occurred in loading trucks while a
Teamsters-represented employee waited for the
ILWU-represented forklift operator to stack or un-
stack pallets on the dock before loading into the
truck, that products can be damaged if pallet stack-
ing and unstacking is done in the confined space of a
truck, and that time is wasted when a Teamsters-
represented loader is forced to bring pallets back out
of the truck to determine how many double-stacked
pallets will be necessary to complete a load.
The record indicates that before the Teamsters-
represented employees began performing the disput-
ed work in March 1976, an ILWU-represented fork-
lift driver was assigned to stack and unstack pallets
on the loading dock as needed by Teamsters-repre-
sented employees, although he had other duties as
well. The ILWU union steward testified that he had
never seen or experienced any substantial delays due
to Teamsters-represented employees waiting for the
ILWU-represented forklift operator to stack or un-
stack pallets. He also stated that stacking and un-
stacking of pallets is more efficiently done in the
truck, because it is easier to judge how high to stack
the pallets there. In addition, the Employer's plant
superintendent testified that any inefficiency created
by Teamsters-represented employees waiting for
stacking or unstacking of pallets to be done by the
ILWU-represented forklift driver had been correct-
ed. Other Employer and Teamsters witnesses, howev-
er, testified that significant delays continued to oc-
cur. Finally, neither the Employer nor Teamsters
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
submitted proof that goods had been damaged due
to the stacking and unstacking of pallets within
trucks.
Despite conflicting testimony , we are of the opin-
ion that the record supports the conclusion that at
least some delays had been encountered in Team-
sters-represented employees waiting for the ILWU-
represented forklift driver to stack and unstack pal-
lets for them . Therefore , we find that permitting
Teamsters-represented employees to do the disputed
work would be slightly, though not significantly,
more efficient.
5. Past practice, interunion agreement, and
employer preference
ILWU insists that employees represented by it
should be awarded the disputed work based upon
past practice, the 1971 agreement between the two
Unions, and the Employer's original preference, or at
least its acquiescence, for ILWU-represented em-
ployees to perform the work in question before
March 1976. Teamsters contends the Employer's
present preference is for employees represented by it
to do the disputed work. As explained in the state-
ment of facts, ILWU and Teamsters apparently
reached an oral understanding in 1971 that ILWU-
represented employees could do the stacking and un-
stacking of pallets on the loading dock by forklift,
except that Teamsters-represented employees could
stack and unstack pallets resting one-half the length
of a pallet on the dock. The Employer apparently
was satisfied with this allocation of work between the
two Unions and, by and large, ILWU-represented
employees performed the work in dispute until
Teamsters-represented employees unilaterally took
over the work in March 1976. Representatives of
Teamsters backed up their insistence that employees
represented by Teamsters do all stacking and un-
stacking of pallets by forklift on the loading dock by
threatening to strike if necessary. At this point, the
Employer underwent a sudden change of heart and
decided that Teamsters-represented employees
should perform the work in question for reasons of
safety and efficiency.
We believe the factors of past practice, interunion
agreement, and employer preference favor assigning
the disputed work to employees represented by
ILWU and are entitled to substantial weight. We are
inclined to give effect to interunion agreements as a
means of encouraging private settlement of jurisdic-
tional disputes, even though the employer has subse-
quently assigned the disputed work to a union repu-
diating such an agreement.2 This is especially so
where, as here, the practice after the agreement has
largely conformed to its terms. Finally, we view with
considerable skepticism the Employer's preference
for Teamsters-represented employees to do the work
in dispute only after these employees had assumed
the work accompanied by a strike threat.'
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that the Employer's employees represented by ILWU
are entitled to perform the work in dispute. We reach
this conclusion even though assigning the work to
employees represented by Teamsters would result in
slightly greater efficiency and economy of opera-
tions. Past practice, the agreement between the two
Unions concerning division of the work, and the
Employer's apparent original satisfaction with per-
formance of the work by ILWU-represented employ-
ees, however, conclusively favor assigning the work
to employees represented by ILWU, who possess the
requisite skills to do the work. Such an assignment is
not clearly inconsistent with area or industry prac-
tice, or with the Employer's collective-bargaining
agreements either with Teamsters or ILWU. It is also
our opinion that assignment of this work to ILWU-
represented employees will not create unsafe working
conditions for employees represented by Teamsters.
Accordingly, we shall determine the dispute before
us by awarding the work in dispute to the Employer's
employees represented by ILWU, but not to that
Union or its members. In consequence, we also find
that Teamsters is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force or require
the Employer to assign the disputed work to employ-
ees represented by it. Our present determination is
limited to the particular controversy which gave rise
to this proceeeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
I. Employees of United Grocers, Ltd., d/b/a Bert
McDowell Company, who are currently represented
2 Local Union No 68, Wood, Wire and Metal Lathers International Union,
AFL-CIO (Acoustics & Specialties, inc), 142 NLRB 1073 (1963), United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 690 (The
Walter Corporation) 151 NLRB 741 (1965)
3 See International Longshoremen's and Warehouse's Union, Local No 50
(Brady-Hamilton Stevedore Company and Willamette Wertern Corporation).
223 NLRB 1034 (1976)
CHAUFFEURS, TEAMSTERS & HELPERS , LOCAL NO. 150 1187
by International Longshoremen's and Warehouse-
men's Union, Warehouse Union Local 17, are enti-
tled to perform the work of operating forklifts in the
stacking and nonstacking of palletized goods in the
shipping or loading dock area of the Employer's
warehouse, operating forklifts in the stacking and
nonstacking of pallets containing cardboard bales in
the shipping or loading dock area of the Employer's
warehouse, and operating forklifts in the stacking
and nonstacking of empty pallets in the shipping or
loading dock area of the Employer's warehouse.
2. Chauffeurs, Teamsters & Helpers, Local No.
150, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require United Grocers, Ltd.,
d/b/a Bert McDowell Company, to assign the above
work to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Chauffeurs, Team-
sters & Helpers, Local No. 150, International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America, shall notify the Regional Direc-
tor for Region 20, in writing, whether or not it will
refrain from forcing or requiring the Employer, by
means proscribed by Section 8(b)(4)(D) of the Act, to
assign the work in dispute to employees represented
by Teamsters rather than to employees represented
by ILWU.