Drivers and Chauffeurs Local Union No. 816, etc.

National Labor Relations Board - Board Decisions

Jun 7, 1960

127 N.L.R.B. 1066 (N.L.R.B. 1960)

1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to cease doing business with Sidel in violation of Section 8(b)(4) (A) of the Act,
and/or (b) forcing or requiring Sidel to recognize and bargain with Respondent as
the exclusive bargaining representative of its employees although Respondent has
not been certified as the representative of such employees in any appropriate unit in
accordance with the provisions of Section 9 of the Act in violation of Section
8(b)(4)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Drivers and Chauffeurs Local Union No. 816, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America and Montgomery Ward and Co. , Incorpo-
rated. Case No. 2-CD-178. June 7, 1960
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides 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 deter-
mine the dispute out of which such unfair labor practice shall have
arisen . .. ."
On September 3, 1959, Montgomery Ward and Co., Incorporated,
herein called Ward, filed a charge with the Regional Director for the
Second Region alleging that Drivers and Chauffeurs Local Union No.
816, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called Local 816, had engaged in
and was engaging in certain unfair labor practices within the meaning
of Section 8(b) (4) (D) of the Act. It was charged in substance that
Local 816 had induced and encouraged employees of Ward, and the
employees of Sidel Truck Leasing Corporation, herein called Sidel,
to engage in a strike or a concerted refusal to work for the purpose
of forcing or requiring Ward and Sidel to assign certain work to
members of Local 816 rather than to employees of Sidel, who were
members of Teamsters Local 138, herein called Local 138.
Thereafter, pursuant to Section 10(k) of the Act and Section 102.89
and 102.90 of the Board's Rules and Regulations, Series 8, the Re-
gional Director investigated the charge and provided for an appro-
priate hearing upon due notice. The hearing was held before Oscar
Geltman, hearing officer, on February 3 and 24, 1960, at New York,
New York. All parties appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. The rulings of the hearing
officer are free from prejudicial error and are hereby affirmed. Ward
and Local 816 filed briefs which have been duly considered by the
Board.
127 NLRB No. 124.
DRIVERS AND CHAUFFEURS LOCAL UNION NO. S 16, ETC. 1067
Upon the entire record in this case, the Board' makes the following :
FINDINGS OF FACT
1. Ward is engaged in commerce within the meaning of the Act.
2. Local 816 and Local 138 are labor organizations within the
meaning of the Act.
3. The dispute :
.a. The facts
Ward operates at 75 Varick Street, New York, New York, what is
commonly described as a fashion pool. Goods and merchandise are
brought into the pool by trucks, are processed, and are then hauled to
various distribution points in the city.
Since September 1, 1959, Ward has had a contract with Sidel for
a trucking service by which the goods and merchandise are hauled
from the fashion pool to the distribution points. For a 3-year period
prior to September 1, 1959, Ward had a contract with Metropolitan
Truck Rental Service, herein called Metropolitan, for the same haul-
ing service.
Metropolitan had a collective-bargaining contract with Local 816.
By its terms, this contract was to run until August 31, 1960. Emil
Wesley and Alex Stern, who were members of Local 816, drove Metro-
politan trucks for the fashion pool job, and also had driven trucks
of other contract carriers hauling the goods and merchandise from
the fashion pool prior to the Metropolitan-Ward contract. Sidel has
it collective-bargaining contract with Local 138 covering its employees.
,On September 1, 1959, Sidel assigned the driving of the trucks for
the fashion pool to its own employees, who were members of Local 138.
On that same day, September 1, 1959, Joseph Forzano, business agent
for Local 816, went to the fashion pool and talked with I-Tarry Ebling,
Ward's traffic manager. Forzano told Ebling that Wesley and Stern
should be paid for that day and put back on Ward's payroll, and that
Local 816 would take the necessary action if these things were not
done. Ebling advised Forzano that Wesley and Stern were employees
of Metropolitan and not of Ward. Also on September 1, 1959, Ken-
neth Sidel, an officer of Sidel's, had a conversation with Lester Con-
nell, secretary-treasurer for Local 816. Connell told Sidel that:
Ward's fashion pool operation had been manned by drivers of Local
816 pursuant to the aforesaid Metropolitan-Local 816 contract; he
expected Sidel to keep this contract in force; the Local 816 men were
to be paid for the day's loss of pay and returned to the fashion pool
job on the following day; and if these things were not done Sidel
would be picketed. On the following day, September 2, 1959, Sidel
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and Jenkins].
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Connell that he would go along with the Metropolitan-Local 816
collective-bargaining contract until its terminal date, August 31, 1960,
on condition that at such time he could negotiate with Local 138 re-
garding his employees. Connell rejected this offer and told Sidel that
he would have to negotiate with Local 816 when the terminal date of
the Metropolitan-Local 816 contract was reached.
Local 816 started to picket Ward's fashion pool on September 2,
1959. Picketing continued until about September 19, at which time it
ceased pursuant to a temporary restraining order granted by the
Federal district court. The picketing stopped shipments to and from
the fashion pool, with the exception of a single pickup by a Gilbert
Carrier driver who disregarded picket Wesley's appeal not to make a
pickup on September 2. The picket signs read : "Montgomery Ward
unfair to Chauffeurs Union Local 816." Local 816 also picketed dur-
ing the aforementioned period at a parking lot where Sidel garaged
or otherwise parked their trucks. The picket sign read : "Sidel Truck
Leasing Corp. Unfair to Chauffeurs Union Local 816."
b. Contentions of the Parties
Local 816 contends that the sole object of the picketing was the
reinstatement of Wesley and Stern. Local 816 further contends that,
even if the Board finds such reinstatement was not the sole object, it
has a contractual right to the assignment of the fashion pool work to
Wesley and Stern.
Ward contends that Local 816 is not legally entitled to force Sidel to
assign work to its members rather than to members of Local 138. It
further contends that the Board should find that the work of driving
trucks for Sidel is included in the unit of truckdrivers represented by
Local 138.
c. Applicability of the statute
Before the Board may proceed with a determination of a 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.
In order to conclude that reasonable cause exists, the Board must find
some evidence in the record showing that: (a) a strike or a concerted
refusal, or an inducement or encouragement of employees to engage
in a strike or concerted refusal, to perform services for any employer
occurred; and (b) any such action was for purposes unlawful within
the proscription of Section 8(b) (4) (D) of the Act2
It is clear that Local 816 established the picket lines at Ward's
fashion pool, and at Sidel's parking lot. The Board has held that a
picket line itself constitutes an act of inducement or encouragement
2International Union of Operating Engineers , AFI CIO, Local 513 (John P. Reuter,
d/b/a Missouri Roofing Company ), 124 NLRB 937 , and cases cited therein.
DRIVERS AND CHAUFFEURS LOCAL UNION NO. 816, ETC. 1069
of employees not to perform services for the picketed employer.' It
is also clear that one of Local 816's pickets orally requested a driver
of a neutral employer not to make a pickup at the fashion pool.
The record shows that Local 816's objective in picketing Ward and
Sidel was, and is, to force or require Sidel to assign driving work to
drivers who are members of, or represented by, Local 816, rather than
to Sidel's own employees assigned to such work, who are not members
of, or represented by, Local 816.
In these circumstances, we are persuaded that there is reasonable
cause to believe that an object of Local 816's picketing was the reassign-
ment of work from Sidel's employees, who were members of Local
138, to members of Local 816. Such conduct is plainly prohibited by
Section 8(b) (4) (D).4
We find, accordingly, that the dispute is properly before us for
determination under Section 10(k) of the Act.
d. Merits of the dispute
As indicated above, there is evidence that the dispute involved
Sidel's assignment of the driving of its trucks to its own employees,
who were members of Local 138, rather than to members of Local 816.
It is well established that an employer is free to make work assign-
ments without being subject to the pressures proscribed by Section
8(b) (4) (D) of the Act, unless the employer fails to conform to an
-order or certification of the Board, or unless the employer is bound
by an agreement to assign the disputed work to the claiming union.
Local 816 has no order, certification, or contract claim to the work.
Accordingly, we find that Local 816 is not entitled, by means pro-
scribed by Section 8(b) (4) (D), to force or require Sidel to assign the
disputed work to members of Local 816 rather than to its own em-
ployees. However, we are not by this action to be regarded as assign-
ing the work in question to Local 138 . ,'
DETERMINATION OF THE DISPUTE
On the basis of the foregoing findings of fact, and the entire record
in the case, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act :
1. Drivers and Chauffeurs Local Union No. 816, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
3 United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, AFL-
-CIO, et al. (Kenneth Markwell and William Hartz, partners d/b/a Markwell & Hartz
Contractors ), 120 NLRB 610, 618
4 Local 472 , International Laborers Union, Heavy and General Construction, AFI CIO,
et al. (Ernest Renda Contracting Company, Inc ), 123 NLRB 1776 , and cases cited therein.
5In declining to make such an affirmative work award , we respectfully disagree with
court decisions to the contrary . See Newark & Essex Plastering Co, 121 NLRB 1094, at
1108-1113. N.L R.B. v. Local 450, International Union of Operating Engineers, eta.
iSline Industrial Painters ), 275 F. 2d 408 (C A. 5).
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America, and its agents, are not and have not been entitled, by means
proscribed by Section 8 (b) (4) (D) of the Act to force or require Sidel
Truck Leasing Corporation to assign the work of driving Sidel's
trucks to be used in the hauling of goods and merchandise from Ward's
fashion pool operation to its members rather than to Sidel's own
employees.
2. Within 10 days from the date of this Decision and Determination
of Dispute, Local No. 816 shall notify the Regional Director for the
Second Region in writing, whether or not it will refrain from forcing
or requiring Sidel by means proscribed by Section 8(b) (4) (D) of the
Act, to assign the disputed work to its members rather than to em-
ployees of Sidel.
National Association of Broadcast Employees and Technicians,.
AFL-CIO, CLC and National Association of Broadcast Em-
ployees and Technicians , AFL-CIO, CLC, Local No. 54 and
Gordon Broadcasting of San Diego , Inc., d/b/a Radio Station
KSDO. Case No. 21-CD-a69. June 10, 1960
DECISION AND ORDER
This proceeding arises under Section 10(k) of the National Labor
Relations 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 January 28, 1960, Gordon Broadcasting of San Diego, Inc.,
d/b/a Radio Station KSDO, herein called Gordon, filed with the
Regional Director for the Twenty-first Region a charge alleging that
National Association of Broadcast Employees and Technicians, AFL--
CIO, CLC, and National Association of Broadcast Employees and
Technicians, AFL-CIO, CLC, Local No. 54, herein collectively called
NABET, had engaged in and were engaging in certain activities
proscribed by Section 8(b) (4) (i) and (ii) (D) of the Act. It was
charged, in substance, that NABET had engaged in conduct pro-
scribed by the aforementioned provisions for the purpose of forcing
or requiring Gordon to assign particular work to members of NABET.
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,
1959), the Regional Director investigated the charges and provided
for an appropriate hearing upon due notice to all parties. The hearing
was held before Harvey Letter, hearing officer, on March 1 and 2,
427 NLRB No. 137.