Drivers and Chauffeurs, Local Union No. 816, Etc.

National Labor Relations Board - Board Decisions

Sep 5, 1962

138 N.L.R.B. 443 (N.L.R.B. 1962)

,DRIVERS & CHAUFFEURS, LOCAL UNION NO. 816, ETC. 443
its refusal to hire certain individuals who had been in the employ of Pike. Because
of these considerations, according to Wallace, a strike resolution was proposed and
adopted. The next morning, April 12, a picket line was placed near Respondent's
premises and a number of its employees engaged in a strike. The pickets carried
signs stating that the Respondent was "Unfair , refuses to bargain with employees'
representative, Teamsters Local 492." F. R. Childers, also a representative of the
Union, testified to the same effect as Wallace.
Philip Naumberg, Respondent's president, testified that on the day that the strike
began he made no attempt to discover its cause and that he did not remember the
legend on the picket signs.
I fully credit the testimony of Wallace and that of Childers concerning the union
meeting of April 11, and find that the men voted to strike to force the Respondent
to extend recognition to the Union and to bargain with it as well as to bring about
the hiring of former employees of Pike. Thus, as one of the causes of the strike
was Respondent's refusal to extend recognition to and to bargain with the Union,
as this refusal has been found by the Board to be unlawful and in derogation of
rights secured to employees by Section 7 of the Act, it follows that the strike was
caused in part at least by Respondent's unfair labor practices. I find that the strike
beginning April 12, 1960, was an unfair labor practice strike from its inception .3
I therefore do not reach the question of replacement of the unfair labor practice
strikers.
RECOMMENDATION
I recommend that the Board adopt the foregoing findings and that it in considera-
tion thereof amend its Decision and Order of December 19, 1961, to reflect the fact
that the strike was an unfair labor practice strike and in all other respects to reaffirm
that decision.
3 N L R B. v. Birmingham Publishing Company, 262 F 2d 2 (C.A. 5)
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. September 5, 1962
ORDER QUASHING NOTICE OF HEARING
This is a proceeding under Section 10(k) of the Act following a
charge filed September 3, 1959, by Montgomery Ward and Co., Incor-
porated, herein called Montgomery Ward, alleging a violation of
Section 8(b) (4) (D) by Drivers and Chauffeurs, Local Union No.
816, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called Local 816 or the Respond-
ent. Specifically, the charge alleged that Local 816 had induced
and encouraged employees of Montgomery Ward and of Siclel Truck
Leasing Corporation, herein called Sidel, to engage in a. strike for the
purpose of forcing 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. A duly scheduled hearing was
held before Oscar Geltman, hearing officer, on February 3 and 24,1960,
at New York City, where Montgomery Ward and Local 816 appeared
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing upon the issues.
138 NLRB No. 58.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 7, 1960, the Board issued a Decision and Determination of
Dispute, in which it found that Local 816 was not entitled, by means
proscribed by Section 8 (b) (4) (D) of the Act, to force or require Sidel
Truck Leasing Corporation to make work assignments to members
of Local 816 rather than to its own employees.' On the basis of the
subsequent Supreme Court decision in the CBS case, issued January
9119619 2 Montgomery Ward filed a motion requesting that the Board
amend its Decision and Determination and make an affirmative award
of the disputed work in favor of truckdrivers represented by Local
138; the Respondent opposed the motion. By order dated March 24,
1961, the Board set aside its Decision and Determination of Dispute,
reopened the proceeding, and directed that a further hearing be held
for the purpose of receiving evidence to enable it to make a deter-
mination of the dispute consistent with the principle established in the
Supreme Court's CBS decision. Pursuant to that order a further
hearing was held before Joseph I. Nachman, hearing officer, on April
18 and July 25, 1961. Local 816 and Montgomery Ward appeared,,'
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 officers are free from prejudicial error
and are hereby affirmed. Montgomery Ward and Respondent Local
816 have filed briefs with the Board which have been duly considered.
On the basis of the entire record as made, we make the following
findings and conclusions :
1. Montgomery Ward is engaged in commerce within the meaning
of the Act.
2. Local 816 and Local 138 are labor organizations within the mean-
ing of the Act.
3. The dispute :
A. The work in dispute
This case arose in September 1959, when the business agent of
Teamsters Local 816 questioned the right of Sidel, an independent
trucking company, to use its own drivers for certain contract de-
liveries; he insisted the work should instead be assigned to members
of Local 816, who had never been in Sidel's employ. The evidence
indicates that to enforce this demand, Local 816 picketed and thereby
successfully interfered with the operations of both Sidel and Mont-
gomery Ward, whose merchandise the Sidel truckdrivers in question
1127 NLRB 1066.
Because the Respondent failed to comply with the Board's determination , 'the Acting
Regional Director thereafter issued a complaint upon which a hearing before a Trial
Examiner opened on October 4, 1960 . That bearing stands indefinitely postponed
2 N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212 ( Columbia
Broadcasting System ), 314 U . S. 573.
s Although Local 138 was informed of the proceeding and invited to appear and partici-
pate therein , it did not appear or in any manner participate in the hearing.
DRIVERS & CHAUFFEURS, LOCAL UNION NO. 816, ETC. 445
were delivering. The charge was filed by Montgomery Ward, and its
ultimate purpose was to declare illegal, and thereby restrain, the
picketing of both employers. The picketing continued until about
September 19, when it ceased pursuant to a temporary restraining
order issued by the Federal district court .4
B. Applicability of the statute and the posture of the case
At the time of the original hearing in this case, the only factors
which the Board considered, and consequently the only elements which
were litigated, were collective-bargaining agreements and Board certi-
fications which might be pertinent. Other considerations, such as the
custom and practice of the employer involved and of the industry
generally were deemed irrelevant and therefore excluded from the
record. These factors, under the new CBS ruling, are now very ma-
terial to a proper determination of the dispute. It was primarily for
this reason that the case was remanded for further inquiry 2 years
after the incident which triggered the charge. We now know that the
factual circumstances which provoked the strike and upon which any
intelligent determination of the dispute must rest have changed
radically.
For some time before September 1959, Montgomery Ward used
Metropolitan Trucking Company, an independent trucker, to deliver
its merchandise. Metropolitan's truckdrivers were represented in
collective bargaining by the Respondent Teamsters Local 816. Mont-
gomery Ward terminated its arrangement with Metropolitan and on
September 1, 1959, contracted to have its merchandise delivered in-
stead by Sidel, an entirely separate trucking company. Sidel's driv-
ers were represented by Teamsters Local 138. As set out in the charge
and in the original notice of hearing, the work dispute was between
Metropolitan's drivers, on whose behalf the Respondent claimed, and
the drivers employed by Sidel. At the first hearing, in February
1960, neither Sidel nor Local 138 appeared; thus there was urged
neither Sidel's prerogative to use its own drivers, nor any claim for
work on behalf of its employees by their collective-bargaining agent,
Local 138.
At the reopened hearing, a year and a half later, it developed that
between March and July 1961, Montgomery Ward again changed its
4 At: the time of the events , 3 years ago , Montgomery Ward also filed charges against
Local 816 under Section 8(b) (4) (A ) and (B ) of the Act, on the theory that the picketing
of Montgomery Ward constituted an illegal secondary boycott because that company was
a neutral to the quarrel between Local 816 and Sidel, the employer which Local 816 was
attempting to coerce into making a change in work assignment . In that proceeding
(Case No. 2-CC-525 ) the Board 'found that - the picketing of Montgomery Ward was a
violation of Section 8(b) (4) (A ) and (B ) and ordered Local 816 to cease and desist from
such conduct ( 127 NLRB 1059 ). The Board's Order was enforced in the Circuit Court
of Appeals for the Second Circuit (292 F. 2d 329 ) and the Supreme Court denied
certiorari ( 368 U . S. 953).
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck delivery contractor and was using instead Custom Truck Rental
Corporation to deliver its merchandise. Its contract with Custom
was in effect on July 25, 1961, and if there has been any further such
change thereafter, the Board has not been so advised. Custom's driv-
ers are represented by still another union, Teamsters Local 807.
While the proceeding was still awaiting decision after the second
hearing, a period during which the ramified legal implications of the
CBS decision were being extensively appraised by the Board, we were
apprised of a further development having a material bearing upon
the case as a whole. On March 23, 1962, Teamsters Local 816 filed
a written disclaimer with the Board, stating unequivocally that it no
longer claims the work in dispute for its members. Sidel Trucking
Company, Custom Truck Rental Company, and Teamsters Local 807
were all served with copies of this disclaimer and none of them filed
any papers in response thereto. On June 20,1962, Montgomery Ward
sent a letter to the Board requesting that Local 816's disclaimer be
ignored.
C. Administrative decision to quash notice of hearing
We believe that no useful purpose would be served by continuing to
process this case and that the policies of the Act would not be fur-
thered by attempting to make a definitive assignment of the work in
dispute at this late date. The pertinent facts have so changed with
the passage of 3 years that an affirmative award by this Board now
would be a meaningless gesture.
Sidel was the primary employer whose right to assign the work to
one of two competing groups of employees was put in question by
Local 816's claim, and the issue, as framed by the pleadings and as
litigated at the hearings, pointed to that one question. But Sidel in
1961 gave up its delivery contract with Montgomery Ward, is no
longer the employer in a position to assign or withhold any disputed
work, and therefore has no further concern with this entire proceed-
ing. Custom was a stranger to the dispute at the time it arose and
there is no indication that at any time from 1961, when it took over
the delivery of Montgomery Ward merchandise, to this day, there
has been any demand or improper pressure upon it or its employees
to compel it to change any work assignment it may have made. With
Sidel's disappearance from the picture before us, Teamsters Local 138,
which represented Sidel's employees only and therefore was the
spokesman for one of the two groups of employees involved, also has
lost all interest in the eventual outcome of this proceeding. And
Teamsters Local 807, the bargaining agent of Custom's drivers, who
at the moment are delivering Montgomery Ward's merchandise, was
never really a party to the proceeding. But this is the later organiza-
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 447
tion which would, in fact, be affected by any further steps which might
be taken here.
And finally, there is the fact that Local 816 has indeed disclaimed
any further demand for the work in question. In these circumstances,
as almost 3 years have passed since the events occurred, as the Em-
ployer and the Union then involved no longer have any interest in
this proceeding or could in any way be affected by our decision, as.
the present employer and the union of its employees are virtual
strangers to the alleged illegal conduct which formed the basis of the
charge in the first instance, and as the Respondent has abandoned
any further claim to the disputed work, we shall quash the notice of
hearing and discontinue the entire case. We are not hereby to be
taken as passing judgment upon any of the contentions urged by the
parties at any stage of the proceeding.
[The Board quashed the notice of hearing issued in this case.]
The William J. Burns International Detective Agency, Inc. and
L. Harry Dadmun and Joseph F. Rodrigue ,l Petitioners and
Independent Union of Plant Protection Employees. Case No.
1-RD-376. September 5, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis Shuman, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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].
Upon the entire record, the Board finds : 2
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.' The Union (IUPPE) resists the inter-
'The posthearing request of Petitioner Rodrigue to withdraw is denied inasmuch as
Copetitioner opposes this withdrawal . The fact that the latter may no longer be a mem-
ber of the bargaining unit is immaterial under Section 9(c) (1) (A ) of the Act.
z The motion to consolidate this proceeding with Case No. 2-RC-11954 is denied because
the parties in the two cases are not the same. However , we take administrative notice
of the other proceeding . See paragraph 2, below
3 The Petitioners assert that the Union , the certified bargaining agent for the employees
here concerned , is no longer the bargaining representative as defined in Section 9(a) of
the Act. From the record it appears that the Union was certified by the Board on May 12,
1960, as International Independent Union of Plant Protection Employees,
138 NLRB No. 51.