General Teamsters Local 326

National Labor Relations Board - Board Decisions

Jan 23, 1974

208 N.L.R.B. 666 (N.L.R.B. 1974)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Teamsters Local 326, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Eazor
Express , Incorporated . Case 4-CD-301
January 23, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 9, 1973, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the Charging Party
filed a brief in opposition to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, General Teamsters
Local 326, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Newark, Delaware, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding, heard at Wilmington, Delaware, on September
10, 1973, pursuant to a charge filed on October 6, 1972,
and a complaint issued on July 18, 1973, presents the
question of whether Respondent General Teamsters Local
326, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(herein called Respondent or Local 326) violated Section
8(b)(4)(i) and (ii)(D) of the National Labor Relations Act,
as amended (herein called the Act), by pressuring the
I The parties stipulated that there did not appear to be any issues of
credibility that need to be resolved but, in the event 1 should find otherwise,
requested me to reopen the record for the purpose of taking testimony to
resolve these issues. I have concluded that the issues presented here can be
resolved on the basis of the uncontradicted testimony and, accordingly, that
Charging Party (Eazor Express, Incorporated, herein called
Eazor) to assign particular work to employees who are
members of or represented by Local 326 rather than to
employees who are members of or represented by Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local No. 299 (herein Local
299), or International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local No.
377 (herein Local 377).
Prior to the issuance of the complaint herein, the Board
conducted a hearing under Section 10(k) of the Act and, on
May 31, 1973, issued a "Decision and Determination of
Dispute" under that Section (203 NLRB No. 154) finding,
inter alia, that Local 326 was not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force or
require Eazor to assign particular work to individuals
represented by Local 326. Local 326's answer (as amended
at the hearing before me) admits that Local 326 has failed
to comply with the aforesaid Decision and Determination
of the Board and has advised the Regional Director of
Region 4 that it does not agree with the "Board
determination" and "can not agree to comply" At the
hearing before me, no testimonial evidence was adduced,
and the only exhibits received consisted of the formal
papers, the transcript and exhibits in the 10(k) proceeding,
the briefs filed by Local 326 and Eazor in that proceeding,
and the decision and order of the United States District
Court for the District of Delaware in the related proceed-
ing under Section 10(1) of the Act. The parties stipulated
that the record in the instant complaint proceeding would
be limited to the foregoing exhibits, the complaint and
answer as amended, the transcript made before me, and
the Board's Decision and Determination of Dispute in the
10(k) proceeding.'
Upon the entire record and after due consideration of
the briefs filed by Local 326, Eazor,2 and counsel for the
General Counsel, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Eazor is a Pennsylvania corporation licensed by the
Interstate Commerce Commission to engage in, and it is
engaged in , the transportation of general and special
commodities by motor truck. It operates approximately 60
terminals in 15 States of the United States . During 1972 its
gross receipts exceeded $30 million. During that same
period , it performed trucking services valued in excess of
$50,000 for Chrysler Corporation (herein called Chrysler)
through deliveries of goods from Chrysler's Detroit,
Michigan , plants to locations in the State of Delaware.
Chrysler is a Delaware corporation engaged in the
manufacture of automobiles. During 1972 , Chrysler
shipped goods valued in excess of $1 million from its
Detroit , Michigan, plants to points located outside the
State of Michigan . Locals 299, 326, and 377 are labor
there is no need to reopen the record Cf Bricklayers, Masons and Plasterer
International Union [Shelby Marble & Tile Col v N LR. B , 475 F.2d 1316.
1321-22 (C A.D C., 1973).
2 I e., the briefs filed by them in the 10(k) proceeding and received as
exhibits in the complaint proceeding
208 NLRB No. 99
GENERAL TEAMSTERS LOCAL '326 667
organizations within the meaning ;of Section 2(5) of the
Act.3
Eazor and Chrysler are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the policies of the Act to assert jurisdiction in
this proceeding.4
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Unlawful Conduct Described in the
16(k) Record
1. The picketing and related activity
For about 7 years prior to September 25, 1972, members
of Locals 299 (a Detroit local) and 377 (a Youngstown
local) employed by Eazor picked up solid loads of auto
parts from Chrysler's Detroit, Michigan , plants and hauled
them by tractor-trailer directly to Chrysler's Newark,
Delaware , assembly plant. Eazor's drivers drove through
the plant gate into the yard, backed up their vehicles to the
dock, blocked the wheels, and opened the trailer doors.
After Chrysler employees (represented by unions not
involved herein) had unloaded the trailers and reloaded
them with any cargo , to be hauled elsewhere, Eazor's
drivers shut the trailer doors, unblocked the wheels, and
drove their vehicles from Chrysler's Newark dock .directly
to the next destination . In. addition , Eazor's drivers
handled the necessary freight bills and did whatever else
was necessary to accomplish final delivery.5
Eazor averaged 2 or 3 such deliveries daily , utilizing
about 50 of its over-the-road drivers , some of whom owned
their rigs ,6 and most of whom were members of either
Local 299 or Local 377. None of the foregoing work was
ever performed, on vehicles operated by Eazor as the
carrier, by any employees who were members of or
represented by Local 326.7
At 6 a.m. on Friday, September 25, 1972, a picket line
was established in front of the main gate of the Newark
plant by members of Local 326, some of whom carried
3 The foregoing findings are based on stipulations in the 10(k) record
and on the complaint and amended answer.
4 These legal and policy conclusions track those made in the Board's
10(k). decision, which to this extent binds me because based on the same
factual findings.
5 Some of Eazor's drivers had performed all of the foregoing work for a
period of several years while employed by Daniels Motor Freight, which
had provided Chrysler with those services prior to Eazor's acquisition of
Daniels in 1967.
6 There is no contention that the owner-drivers are not employees within
the meaning of the Act. Eazor deducts income taxes, social security, and
State and local taxes where applicable, from the owner-drivers' pay checks.
The owner-drivers have seniority rights which are independent of their
equipment lease. The equipment least can be terminated by either party
upon 30 days' notice, but an owner-driver cannot be discharged except for
cause, and he has recourse to the grievance procedure under the collective-
bargaining agreement. In the event that an owner-driver's lease is
terminated, he can exercise his seniority to obtain other work. The owner-
driven haul exclusively for Eazor, and cannot trip lease for another carrier
without permission from Eazor. The owner-drivers cannot refuse to take a
load unless another driver is ready and willing to take the load. An
improper refusal results in. discipline. Where drivers own more than one
piece of equipment which is leased to Eazor, Eazor interviews and hires the
driver to operate the equipment and pays him directly, not the owner. The
terms and conditions of employment of the owner-driven are regulated
placards stating that the four trucking companies named
thereon, which included Eazor, were "unfair."8 Later that
morning, between 7 and 8:30, the plant's personnel
manager, Louis Morris, arrived at the picket line, intro-
duced himself, and asked to talk to a "spokesman for the
group." Frank Sheeran , 'president of Local 326 and
admitted in the answer to be that Union's agent, extended
his hand and introduced himself. Sheeran told Morris that
Local 326 had no quarrel with Chrysler, that Local 326s
quarrel was limited to the four named companies because
they "hauled material into the plant ," that Local 326 did
not desire to disrupt Chrysler's operations in any way, and
that there would be no violence unless Chrysler attempted
to "sneak material into another gate." Morris testified that
Sheeran told him that "they were trying to make arrange-
ments whereby they could get-and I think that he used
the term 'city man'-on the trucks" operated by Eazor.
Sheeran denied Morris' request for time to attempt
settlement of the matter , stating that the four companies
involved had been aware of Local 326s demand for over a
month, that Local 326 members "were pretty hot about the
situation having dragged on as long . and that the line
was going to stay there until . it was resolved ." Sheeran
assured Morris that Chrysler's trucks and food deliveries
for Chrysler's employee cafeteria could cross through the
picket line without difficulty. While the foregoing discus-
sion was in progress, both a rubbish removal truck and a
mail truck entered the plant through the line. When a
couple of pickets started to . walk toward the former truck,
Sheeran said, "No, that's all right . Let them go. That's
removing their rubbish."9
While Sheeran was talking with Morris, Local 326
business representative , Paul Harris (admitted in Local
326's answer to be Local 326 s agent), drove up: Harris told
Morris that only the companies named on the placards
would be stopped. Morris replied that Sheeran had given
the impression that no freight would be brought into the
plant . Harris then asked, "Is that right , Frank? Are you
stopping all the trucks?" Sheeran replied that the other
under , the collective-bargaining agreement, which, inter aria requires all
leased equipment to be operated by an employee of the carrier . Eazor makes
health and welfare payments for these owner-drivers in accordance with the
collective-bargaining agreement . A flat 3 percent is incorporated into their
wage payments in lieu of actual holidays and vacations. Eazor may
reprimand the owner-drivers because of customer complaints or speeding
tickets, and may advance money to help a driver repair his rig when it has
broken down.
7 ,My findings in the foregoing paragraph are based on undisputed
evidence in the 10(k) record , and substantially track those made by the
Board in the 10(k) proceeding.
8 The placards contained a block -printed legend, `This company
unfair,- with the companies' names lettered in crayon.
9 My findings in the foregoing paragraph as to the content of the
conversations are based primarily on Morris' testimony in the 10(k) record,
not denied by Sheeran . Sheeran admitted that he had "conversations" with
Morris that morning, although Sheeran testified that he arrived on the scene
about 8:30 a .m. rather than before 7 as Morris testified . Sheeran also
admitted that some of the pickets were members of Local 326.
Sheeran in effect denied Morris' further testimony that Sheeran told him,
"If for some reason or another they couldn 't get a driver on it, then they
would just mail a day's wages to the local union hall for a local union driver,
Local 326.^ Resolution of this conflict appears unnecessary to a determina-
tion of the issues here.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dnvers were all members of the Teamsters Union and they
were not going to cross the line.10
At or around this time, John Groves, a member of Local
377 employed by Eazor, arrived at the plant on his weekly
run from Detroit and attempted to enter the gate in order
to make final delivery, as he had done for the past 7 or 8
years. He was prevented from doing so, however, by five or
six pickets who blocked his way, told him that they were
from Local 326, and stated that they were "on strike
against Eazor Express" and the three other trucking
companies. The pickets instructed him to park his vehicle
across the road from the plant, and Groves did so. A short
time later, he was joined by Albert Gardner, a Local 299
member employed by Eazor, who had entered the plant
before the picketing began and was then leaving the plant
after having delivered his load to the dock, as he had done
for the past several years. Groves and Gardner then spoke
with the pickets, who stated that they wanted Eazor to put
a "city man" on the dock and "in Newark, Delaware," that
they were picketing because Eazor refused to comply with
their demands, and that Chrysler would have to shut down
"within a couple of hours" because no trucks would cross
the line to deliver freight. Sheeran, who with Harris was
among the pickets while Groves and Gardner were talking
to them, told Groves that "they were picketing against the
... four companies" named on the placards. Gardner
testified that he and Sheeran had a "friendly discussion"
on the picket line and that Sheeran made no specific
demands on him. Sheeran testified, ". . . it is true that I
did talk to one driver, and we wouldn't stop anybody from
going in ." Groves advised Chrysler that he would not cross
the picket line to deliver his load, whereupon Chrysler
reconsigned it to a warehouse in Newcastle, Delaware.
When Sheeran and Harris left the area on the first day of
the picketing, the picketing was still in progress."
About 2 p.m., Chrysler attempted to isolate, and thereby
free itself of, the dispute by establishing a separate gate to
be used by employees of the four firms (including Eazor)
named on the placards. The pickets, however, ignored that
gate and continued to picket the main gate. Consequently,
no deliveries except mail and food were made that day, as
contrasted with a norm of approximately 30 deliveries
daily; and, true to the pickets' prediction, the effect of the
picketing was to bung the plant to within a few hours of
shutting down. However, Morris testified that in accord-
ance with Sheeran's assurances, except for the interference
with deliveries, "There was no interference with our
operations on our property on the day in question." Thus,
trucks leaving the plant, including those driven by Local
326 drivers carrying manufactured cars through an
unpicketed gate, were not interfered with. Moreover, Local
326 members performed jockeying work behind the picket
line, on vehicles previously dropped at the plant, after
10 These findings are based on Morris ' uncontradiLtcd testimony in the
10(k) record Harris did not testify, although he was present in the hearing
room while this testimony was given
ii My findings in this paragraph are based on the undisputed testimony
of Groves , Gardner , and Sheeran at the 10(k) hearing
12 During this period, Eazor made some parts deliveries to Chryslers
Newark warehouse Later during this period, Eazor made some parts
deliveries to Chrysler 's Philadelphia warehouse , where they were picked up
by dnvers represented by a Philadelphia local (Local 107) and brought to
asking Sheeran whether it was all right to go inside, to
which he admittedly replied that Local 326 was not on
strike.
After the separate gate proved ineffective, Chrysler
officials instructed the plant management not to let Eazor
bring materials into the plant until the dispute was
resolved, and also told Eazor's president that Eazor would
be cut out of the Newark run unless Eazor was "able to get
together with the union there and cover the loads with 326
men." Although the pickets were removed at 8 a.m. the
next day, Eazor made no deliveries to the Newark plant
until November 10, 1972, when injunctive relief was
obtained.12 Chrysler then resumed having materials deliv-
ered to the Newark plant by Eazor, whose drivers have
since performed the "jockeying" work.13
At the 10(k) hearing, the parties stipulated that Eazor "is
not failing to conform to an order of [sic] certification of
the Board determining the bargaining agent of the
employees performing the work in dispute."
2. Evidence bearing on responsibility for the
picketing
Sheeran testified that he did not order the picket line set
up on September 25, 1972; that he did not have the
"slightest idea" who ordered the line up; 14 that "We were
requested" by an unidentified person or persons "to bring
a sign up, and we didn't have no sign, and we didn't give
no signs out to anybody;" and that he had "no knowledge"
of any Local 326 meeting the day preceding the day the
line was put up. He further testified that on September 25
he "got wind of" the picketing through a call from an
unidentified source, that he went down to the line to see
what was going on, and that he then "figured I would cool
the guys down. They were mad, and my job is to make sure
they don't get into any problem, nobody gets into any
problem." Sheeran characterized as "order[ing] the line
down" the following exchange:
I said why don't you let your local union handle
it. They said, "You've been dragging your feet too
long."
I said, "We'll get the thing settled."
Q. Your position is that these pickets were unau-
thorized?
A. That's right. My position was-and I stood there
to make sure that we wouldn't have any problem. Then
I finally left.
* s s
Q. When you left, were the pickets still there?
A. Yes sir.
Q. Was Mr. Harris there when you left?
A. Mr. Harris? I don't believe so.
the Newark plant.
"I My findings in the foregoing two paragraphs are based on undisputed
evidence in the 10(k) record, and substantially track those made by the
Board in the 10(k) proceeding
14 When then asked by Eazor's counsel whether he was president of
Local 326, Sheeran testified . " I was not president when the line went up "
However, immediately thereafter he admitted that he was president on
September 25.
GENERAL TEAMSTERS LOCAL 326
Sheeran later testified that he "chew[ed the pickets] out. If
I remember, I said, in trying to get the line off. I wanted
the line off. And we had to take action." Sheeran testified
that he took no disciplinary action against the pickets
(some of whom, as he pointed out, were nonmembers)
"Outside of chewing them out a little bit," and telling them
"afterwards" to bring such claims in the future before the
executive board "because they were putting the union in
jeopardy. They had no right to do it. There was no union
official who had authorized this thing."
When asked the purpose of the picket line, Sheeran
testified, "Well, the purpose of the line-the men who were
on the line, they were men from the hire-hall, and they
thought the thing was dragged out, and they put up a line
... you know, with any organization you always have
men that think they know more than the union officers."
Sheeran admitted that Local 326 claimed the work sought
by the picketing. More specifically, he testified that Local
326 wanted the work of "covering the body," that is, the
replacement of Eazor's over-the-road driver by a "city
man," represented by Local 326, who, at some point near
the plant, or the plant's dock, would take over the vehicle
and make the final delivery at the plant, including backing
in the rig, opening and closing the doors, moving the
blocks, getting the bills, and driving the vehicle out of the
docks.is
3. Evidence bearing on the existence of a
jurisdictional dispute
Sheeran testified that where "local men" who are
represented by Local 326 effectuate final delivery of cargo
hauled into Local 326's jurisdiction by over-the-road
drivers, the "local r-ien" are paid by check made out by the
trucking company. Eazor's president testified that if Eazor
went along with Local 326's request, it was his understand-
ing that the Eazor '.ruck would pick up a Local 326 man at
the plant; and tha, if Eazor were to assign the jockeying
work to a member of Local 326, Eazor would pay him, but
would not pay the Local 377 and 299 members who took
the load to Newark any less than they are being paid now.
In so testifying, he relied partly on experiences elsewhere
(not shown to involve any of the locals here) and partly on
the "National Master Freight Agreement and Central
States Area" collective bargaining agreement and its "Iron
and Steel and Special Commodity Rider," to which Eazor
and Locals 299 and 377 were parties between April 1, 1970,
and June 30, 1973. The "Rider" covered, inter alia, "any
driver, chauffeur, or driver-helper operating a truck."
Under this agreement Eazor paid its drivers a specified
percentage of "gross revenue as wages." The rider further
provided:
The operations shall be shipper to consignee or
interline except that one pickup of a solid load at point
of origin and one delivery of a solid load at point of
destination shall be allowed .. .
The driver shall only supervise in the loading and/or
15 Local 326 's claim to the jockeying work includes not only the plant
area, but also any point within its jurisdiction.
16 Groves testified that if a city man "made one mistake with my
669
unloading and at no time shall he be required to
physically aid in the loading and/or unloading ... .
Eazor drivers Gardner (a Local 299 member) and Groves
(a Local 377 member) testified that it was their understand-
ing that if a Local 326 member were assigned to do the
jockeying work, that employee would be paid by Eazor and
not by the over-the-road drivers. Groves testified that if the
Local 326 member's pay were deducted from his own
compensation under such circumstances, he would quit
hauling the freight. Gardner testified that rather than pay
anything to Local 326 drivers under such circumstances, he
would leave Eazor's employ. Groves and Gardner, both of
whom own the rigs which they operate, further testified
that because of the substantial investment which they have
in their rigs, they would not, under any circumstances, let
anyone else operate their rigs.16
Local 377 member Groves testified that no official or
agent of that Union ever told him either to handle or not to
handle the delivery work at the dock, and that "It's just
part of my job." Local 299 member Gardner testified that
he presumed Local 299 was aware that he made parts
deliveries for Eazor between Detroit and Newark, that
Local 299 had never had any discussions with him about it,
and that he claimed this work. Local 299 committeeman
John Schweigert, an Eazor driver, testified that Local 299
was aware that he transported commodities between
Detroit and Newark and had never told him not to do it;
and that he would accept future assignments from Eazor of
such work. Groves testified that he wanted to continue the
work that he was now doing, but if his Union (Local 377)
asked him to "recognize the right of Local 326, its
jurisdiction to demand that jockeys be employed . . . at
the Chrysler plant," he would not "contest it." Schweigert,
who does not own a rig, testified that he would have no
quarrel with following "the policy of [his] local union
[299]," as allegedly stated at the hearing, "not to contest
the jurisdiction of Local 326 with respect to jockeying
work"-a "policy" which "wouldn't cost [him] no money."
Groves testified that Sheeran never told him that Sheeran
wanted a driver to take over Groves' truck, why the driver
would ride with him, or that Sheeran wanted Groves to pay
a driver, and that Sheeran made no specific demand upon
him. Gardner testified that nobody had made a demand on
him and told him that he would have to pay the expense of
the city man, or under what conditions a city man would
have to be used.
At the 10(k) hearing, counsel for Locals 299 and 377
stated, inter alia:
In our estimation there is no jurisdictional dispute here.
The position of Local 377 and 299 is that we do not
claim that the work that is the subject of this hearing
must be assigned to drivers who are members of Local
299 and 377. We were in the Delaware area by virtue of
our obligations under contracts with the Employer.
We were dispatched to those locations, and we were
transmission, it cost me $46.000" Gardner testified , "If I get a load where I
have to have a city man, I don't take it "
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely following the instructions of dispatchers. It is
our formal position that we don't care what the Board
does with this work and that, in fact, there is no real
dispute within the meaning of the Act.
* s s s s
I don't consider myself an interested party. I am
here . . . on behalf of Locals 377 and 299, and we are
not asserting a claim. We do not insist that the work be
assigned to us.
Again, we don't care what the Labor Board does with
it. We don't think there is a dispute that is cognizable
under Section 10(k) of the Act, and the Board may do
as they so desire.
Counsel for Locals 299 and 377 further stated at the
10(k) hearing, "It is my understanding that members of our
Locals were assigned the work . . . I assume they are
continuing to do it, but it is our formal position that we
don't care what the Board does with it . . . . We did not
make any claim that it must be assigned to us." When
asked by the 10(k) hearing officer, "But when the work is
assigned, you will perform it, your members will perform
it?" counsel replied, "I will assume that they will continue
as they have in the past. We will not refuse, nor will we
insist that we perform the tasks." Eazor's counsel stated
during the 10(k) hearing, without contradiction from
counsel for Locals 299 and 377, that no drivers represented
by these locals have filed grievances which opposed their
performance of this work, or have ever refused to perform
it. Eazor's counsel further asserted that these locals had
never attempted to impose discipline on these employees
for performing the work; counsel for these locals stated
that he did not know whether this assertion was true.17
B. The Board's Determination of Dispute in the
10(k) Proceeding;- Local 326s Refusal to Comply
Therewith
On the basis of the record in the 10(k) proceeding, which
also constitutes most of the record before me and on which
the foregoing findings are based, the Board found
reasonable cause to believe that a violation of Section
8(b)(4)(D) had occurred, and that the dispute was properly
before the Board for determination under Section 10(k) of
the Act. The Board made the following Determination of
Dispute on May 31, 1973:
1. Employees of Eazor Express, Incorporated, who
are represented by International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 299, and by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 377, are entitled to
perform the work involved in the final delivery of
goods to Chrysler Corporation's Newark, Delaware,
plant, including driving over-the-road trucks to the
plant's delivery or receiving docks, opening and closing
17 Locals 299 and 377 did not file briefs in the 10(k) proceeding. and did
not appear at the proceeding before me although served with notice thereof
is The contract on which Local 326 relied in the 10(k) proceeding as a
basis for its claim to the work expired after the Board issued its 10(k)
trailer doors, blocking the wheels, handling the neces-
sary freight bills, doing whatever else is necessary to
accomplish final delivery, and driving the truck out of
the plant docks.
2. General Teamsters Local 326, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is not entitled
by means proscribed by Section 8(b)(4)(D) of the Act
to force or require Eazor Express, Incorporated, to
assign the disputed work to individuals represented by
that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, General Teamsters
Local 326, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, shall notify the Regional Director for Region
4, in writing, whether or not it will refrain from forcing
or requiring Eazor Express, Incorporated, to assign the
work in dispute to individuals represented by General
Teamsters Local 326, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, rather than to employees of
Eazor Express, Incorporated, who are represented by
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No.
299, and by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local No. 377.
Local 326's answer to the complaint, as amended at the
hearing before me, concedes that Local 326 has failed to
comply with the aforesaid Decision and Determination
and has advised the Regional Director of Region 4 that it
does not agree with the Board determination and can not
agree to comply.
C. Analysis and Conclusions
None of the parties having tendered to me any evidence
other than that included in the 10(k) record, I have no
power to consider either whether the 10(k) notice of
hearing should have been quashed because of Local 326's
allegation that the parties to the dispute had agreed upon
methods for the voluntary adjustment of the dispute (a
contention rejected by the Board in the 10(k) proceeding)
or whether employees represented by Local 326 are
entitled to perform the disputed work notwithstanding the
Board's contrary conclusion in the 10(k) proceeding.
Bricklayers, Stone Masons, Marble Masons, Tile Setters and
Terrazzo Workers Local Union No. 1 of Tennessee (Shelby
Marble & Tile Co.), 195 NLRB 123, enfd. 475 F.2d 1316
(C.A.D.C, 1973); Cleveland Stereotypers' Union No. 22,
International Stereotypers' and Electrotypers' Union of North
America (Western Press, Inc.), 160 NLRB 1184, 1186, enfd.
402 F.2d 270 (C.A. 6, 1968).i8 Moreover, Local 326 admits
that it has failed to comply with the Section 10(k) award.
Accordingly, the only issue before me is whether the
evidence preponderantly shows that Local 326 exerted the
kind of pressure specified in Section 8(b)(4)(i) and (ii) with
determination. At the hearing before me, all parties stipulated that the
instant case can be decided without reference to any contract which Local
326 may now have as a replacement for the expired contract already in the
record.
GENERAL TEAMSTERS LOCAL, 326 671
an object specified in Section 8(b)(4XD). Shelby Marble,
supra, 475 F.2d at 1322. 19 I conclude that it does.
1. The pressure exerted by Local 326
The record shows that Frank Sheeran, Local 326's
president and admittedly its agent, told Chrysler that the
picket line was going to stay in front of the Chrysler plant
until resolution of the dispute arising from Local 326's
demand that Eazor hire a "city man," correctly predicted
to Chrysler that none of the deliverymen would cross the
line, and implied that there would be violence if Chrysler
attempted to "sneak material into another gate." Accord-
ingly, even assuming arguendo that Local 326 was in no
way responsible for the presence or continuance of the
picket line, the Union (through its admitted agent Sheeran)
threatened, coerced, and restrained Chrysler and Eazor
within the meaning of Section 8(bX4Xi) and (ii).20
Moreover, I conclude that Local 326 was answerable for
the picketing itself. By Sheeran's own admission, the
pickets were attempting to obtain for Local 326-represent-
ed employees the same work which Local 326 was
claiming, by the use of picket signs naming the same four
companies with which Local 326 had a dispute. When
Morris asked to speak to a "spokesman" for the pickets,
Sheeran extended his 'hand and introduced himself.
Further, Sheeran used the presence of the picket line as a
basis for urging that the work be assigned in accordance
with Local 326's claim. Also, when Morris in effect asked
Sheeran to postpone the picketing, Sheeran made no claim
that he was unable to do so (as would have been natural. if
this were the case) but, instead, refused on the ground that
the dispute had already been dragged on long enough. In
addition, Sheeran demonstrated his control over the scope
of the picketing's appeal by successfully directing the
pickets not to stop the rubbish truck from entering the
plant and by giving Local 326 members permission (of
which they took advantage) to perform jockeying work
inside the line. Such limitations imposed by Sheeran, and
the demonstrated willingness of all drivers (including
members of Local 326) to transport goods from the plant
across the picket line, all accorded with Sheeran 's assur-
ance to Morris that Local 326 did not desire to disrupt
Chrysler's operations in any way. In addition, Sheeran and
Harris were both present on the picket line on the morning
of the day it began, and left the area without seeing to it
19 The Board found in its 10(k) decision , based-so far as relevant
here--on the record now before me , that "there is reasonable cause to
believe that a violation of Section 8(b)(4XD) has occurred, and that the
dispute is properly before the Board for determination under Section 10(k)
of the Act." While obviously not inconsistent with a determination that such
conclusions are supported by "a preponderance of the testimony taken"
(Sec. 10(c)'s predicate for a remedial order), such a statement is not the
equivalent thereof. See N.L.R.B. v. Plasterers Local Union No. 79,404 U.S.
116, 122, fn. 10 (1971).
20 N.L.R.B. v. Local 825, International Union of Operating Engineers,
[Burns and Roel, 400 U.S. 297,300-304(1971); Local 157, United Association
of Journeymen and Apprentices of the Plumbing and Pipefttting Industry
(Midwest Homes, Inc.), 155 NLRB 16, 19, 22, enfd . 369 F.2d 388 (C.A. 7,
1966); General Drivers and Dairy Employees, Local No. 563 (Fox Valley
Material Suppliers Association), 176 NLRB 386, 394, enfd . 440 F.2d 354
(C.A.7, 1971).
21 "... why don't you let your local union handle it . . . well get this
thing settled . . . I [want ) the line off . . . we [have ) to take action."
a2 District 30, United Mine Workers of America (Elkhorn Mining Co.), 163
that the picket line was lifted. Moreover, Sheeran's
understandably unsuccessful efforts to "order the line
down" on September 25 were admittedly limited to. mere
suasion 2t and "chewing them out." Furthermore, even
afterwards, Sheeran took no disciplinary action against the
pickets who were Local 326 members, other than "chewing
them out a little bit" and telling them to bring such claims
in the future befgfe the Executive Board because the
pickets were jeopardizing the Union and engaging in
conduct unauthorized by any union official. I conclude
that notwithstanding Sheeran's uncontradicted testimony
that Local 326 "didn't have no sign and ... didn't give no
sign out to anybody," and accepting his testimony that he
had no knowledge of who ordered the line up or of any
Local 326 meeting the day before the picketing began,
Local 326 is answerable for the picketing by adopting,
ratifying, and condoning it.22
Because the picketing caused deliverymen employed by
Eazor and other persons to refuse to make deliveries across
the line, thereby brought the Chrysler plant to within a few
hours of closing, and thereby caused Chrysler to cease
having Eazor make deliveries to the Newark plant until
injunctive relief was obtained, such picketing plainly
constituted both inducement or encouragement of individ-
uals to refuse in the course of their employment to
transport materials and to perform services within the
meaning of Section 8(b)(4)(i), and threats, coercion, and
restraint against Chrysler and Eazor within the meaning of
Section 8(b)(4)(ii).23
2. The existence of a jurisdictional dispute
Local 326 contends in its brief that its conduct did not
violate Section 8(b)(4)(D) because no jurisdictional dispute
existed with respect to the work covered by the 10(k)
award. Local 326 points to the statements of counsel for
Locals 377 and 299 during the 10(k) hearing that there is
no jurisdictional dispute and that these Locals do not insist
that the work be assigned to them, to the testimony of
Local 377 member Groves, and Local 299 member
Schweigert that if their respective locals had a policy of
recognizing Local 326's "jurisdiction" with respect to
jockeying work they would not "contest" that 'Jurisdic-
tion," 24 and to their testimony and the testimony of Local
299 member Gardner that nobody had made a demand on
them for the work. However, the existence of a jurisdiction-
NLRB 562, 569 , enfd . 69 LRRM 2792 (C.A. 6, 1968); Teamsters Local
*113, International Brotherhood of Teamsters(E J. Lavino & Company), 157
NLRB 1637, 1638,fn. 1. 1642-43.
23 Local 1291 , International Longshoremen's Association (Pocahontas
Steamship Company), 152 NLRB 676, 678, 154 NLRB 1785, 1788-89, enfd.
368 F.2d 107 (C.A. 3, 1966), cert. denied 386 U.S. 1033 (1967); Local Union
No. 272, International Association of Bridge, Structural and Ornamental Iron
Workers (Prestress Erectors, Inc.), 172 NLRB 207, enfd. 427 F.2d 211 (C.A.
5, 1970); N.LR.B. v. Local 825, International Union of Operating Engineers
(Burns and Roe), 410 F.2d 5, 7-8 (C.A. 3, 1969), revd. in part 400 U.S. 297,
301,303-306(1971).
24 1 cannot attach much practical significance to owner-operator Groves'
somewhat generalized testimony in this respect . Groves also testified that
under no circumstances would he permit any other driver to drive Groves'
rig, and that even if Eazor instructed him to let a Local 326 man operate
Groves' unit in the yard, the only work Groves would permit him to do
would be hand loading and unloading (which was not done at the Chrysler
plant). taking the bills inside, and opening and closing the doors.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
al dispute does not require the existence of "a dispute
between two or more groups of employees actively
competing for the same work assignment." Local 40,
International Brotherhood of Electrical Workers (F&B/Ceco
of California, Inc.), 199 NLRB 903. Rather, "The fact that
one union has the jobs and holds on to them in a polite,
nonbelligerent manner while the other union uses the
forbidden tactics in an effort to get them, or some of them,
does not mean that what Congress regarded as the evils of
a jurisdictional dispute are not present." International
Brotherhood of Electrical Workers v. C. J. Montag & Sons,
Inc., 335 F.2d 216, 221 (C.A. 9), cited with approval,
Plasterers Local Union, supra, 404 U.S. at 135, fn. 31;
quoted with approval, Burns & Roe, supra, 410 F.2d at 8
(C.A. 3). In the instant case, members of both locals
testified that they desired to continue to perform the
jockeying work. Furthermore, members of these local
unions have continued to perform that work without (so
far as the record shows) restraint, discipline, or threats
thereof from their locals. Indeed, counsel for these local
unions stated at the 10(k) hearing that when the work was
assigned to members of these locals, "I will assume that
they will continue as they have in the past. We will not
refuse , nor will we insist that we perform the tasks."
Moreover, even if Eazor were to assign the jockeying
work to employees represented by Local 326, Eazor would
nonetheless need the services of drivers represented by
Locals 299 and 377 to operate the vehicles from the
freight's Detroit point of origin to Local 326's jurisdictional
area in New Jersey. Further, whether or not Eazor used
Local 326 jockeys, the Local 299 and 377 longhaul drivers
would still be contractually entitled to the same pay, which
is computed on the basis of a percentage of the gross
revenue. The two owner-operator witnesses both testified
that if Eazor did not sustain the expense of engaging
jockeys, and the owner-operators' wages were diminished
because of the jockeys' wages, the owner-operators would
not haul the freight in question. Similarly, after expressing
willingness to have Local 326 drivers perform jockeying
work, the remaining driver witness, who also worked for
Eazor but did not own a rig, added that this arrangement
"wouldn't cost me no money." "... the fact that the union
which has the job is not unwilling that the other union
should come in and do some of the work and get paid for
doing it, if the first union will still continue to get paid for
the work, does not remove the situation from the category
of jurisdictional disputes." Montag, supra, 335 F.2d at 221,
quoted with approval in Pocahontas Steamship, supra, 152
NLRB at 680.25 "... a jurisdictional dispute between two
groups of employees as to which is entitled to certain work
is in essence a dispute as to which shall receive compensa-
25 Pocahontas was cited with apparent approval in Plasterers Local
Union, supra, 404 U.S . at 136, In. 31.
26 From the district court's opinion in the related 10(1) proceeding, it
appears that in defense of its picketing , Local 326 advanced the "publicity
proviso" to Section 8(b)(4). The district court rejected this contention on the
ground that ( 1) the picketing did not meet the proviso 's requirement that
"the purpose" of the questioned conduct be to convey information, because
an object thereof was to force or require Eazor to reassign the work; (2) the
proviso was designed to permit appeals to the general public as consumers,
and not to permit coercion or inducement of a secondary employer to cease
doing business with the primary employer; (3) the publicity proviso
specifically excludes picketing from the types of protected publicity activity,
tion for that work . The opportunity sought to perform
labor is significant only as a means of obtaining compensa-
tion . It follows that if workmen , who are entitled to a job
under the terms of a labor contract, agree to forego the
obligation of working but not the concomitant right to
payment, they have not disclaimed any significant right.
When , as in this case , one group insists that work, for
which another group has contracted and is being paid, be
assigned it, the fact that both groups are claiming pay for
the same work suffices to create a jurisdictional dispute,
and it is irrelevant that either group , or both, may manifest
a willingness to take the pay and forego the work."
Pocahontas Steamship, supra, 368 F .2d at 110 (C.A. 3).
Accordingly , I conclude that the purported disclaimers
of Locals 299 and 377 are not effective to extinguish the
jurisdictional dispute herein.26
CONCLUSIONS OF LAW
1. Eazor Express, Incorporated, and Chrysler Corpora-
tion are persons engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. General Teamsters, Local 326, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America; International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 299; and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local No. 377, are labor
organizations within the meaning of Section 2(5) of the
Act.
3. The Respondent has failed and refused to comply
with the Board's Decision and Determination of Dispute,
issued on May 31, 1973, and reported at 203 NLRB No.
154.
4. Respondent has engaged in unfair labor practices
proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act by
inducing and encouraging individuals employed by per-
sons engaged in commerce, or in an industry affecting
commerce, to refuse in the course of their employment to
transport goods, articles, materials, or commodities and to
perform services; and by threatening, coercing, and
restraining Eazor and Chrysler; an object thereof being to
force or require Eazor to assign the work described below
to employees represented by Respondent rather than to
employees represented by Locals 299 and 377.
The work consists of:
The work involved in the final delivery of goods to
Chrysler Corporation's Newark, Delaware, plant,
including driving over-the-road trucks to the plant's
delivery or receiving docks, opening and closing trailer
and N.L.R.B. v. Fruit and Vegetable Packers & Warehousemen , Local 760
[Tree Fruits], 377 U.S . 58, 65-70 ( 1964), did not exempt picketing directed at
the secondary employer in his capacity as a purchaser or user of the primary
employer's products; (4) the picketing was not publicity picketing directed
at the general public to persuade them not to deal with Eazor, because the
Newark plant is not a retail outlet for Chrysler products and the Eazor
product or service is not the type of product which can be specifically
identified and boycotted ; and (5) the publicity proviso by its express
provisions does not protect activities which have the effect of inducing
employees of secondary employers to refuse to deliver goods. This
contention has not been advanced to the Board or to me.
GENERAL TEAMSTERS LOCAL 326
doors, blocking the wheels, handling the necessary
freight bills, doing whatever else is necessary to
accomplish final delivery, and driving the truck out of
the plant docks.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices proscribed by Section 8(b)(4)(i) and (ii)(D)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the purposes of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER27
Respondent General Teamsters Local 326, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers,
agents, and representatives, shall:
1. Cease and desist from inducing or encouraging any
individual employed by Eazor Express, Incorporated, or by
any other person engaged in commerce or in an industry
affecting commerce, to engage in a strike or a refusal in the
course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any
services; or threatening, coercing, or restraining Eazor or
Chrysler Corporation; where in either case an object
thereof is to force or require Eazor to assign the work
described below to employees represented by General
Teamsters Local 326, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Respondent herein, rather than to
employees represented by International Brotherhood of
Teamsters, Chauffeurs,. Warehousemen and Helpers of
America, Local No. 299, and by International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 377. The work involved consists of:
The work involved in final delivery of goods to
Chrysler Corporation's Newark, Delaware, plant,
including driving over-the-road trucks to the plant's
delivery or receiving docks, opening and closing trailer
doors, blocking the wheels, handling the necessary
freight bills, doing whatever else is necessary to
accomplish fina` delivery, and driving the truck out of
the plant docks.
2. Take the fol•owing affirmative action designed to
effectuate the policies of the Act:
(a) Post in conspicuous places in Respondent's business
offices, meeting halls, and all places where notices to
employees are customarily posted, copies of the attached
notice marked "Appendix." 28 Copies of said notice, on
forms provided by the Regional Director for Region 4,
after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent immedi-
673
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Sign and mail sufficient copies of said notices to the
Regional Director for Region 4 for posting by Eazor and
Chrysler, at all locations where notices to their respective
employees are customarily posted, if they are willing to do
so.
(c) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
17 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 , recommendations , 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
2ti In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any individual
employed by Eazor Express, Incorporated, or by any
other person engaged in commerce or in an industry
affecting commerce , to engage in a strike or a refusal in
the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform
any services ; or threaten , coerce , or restrain Eazor or
Chrysler Corporation; where an object is to
force or require Eazor to assign the following work
to employees represented by General Teamsters Local
326, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, rather than to employees represented by
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Locals 299
and 377.
The work involved is the final delivery of goods
to Chrysler Corporation's Newark, Delaware,
plant, including driving over-the-road trucks to
the plant's delivery or receiving docks, opening
and closing trailer doors, blocking the wheels,
handling the necessary freight bills, doing what-
ever else is necessary to accomplish final delivery,
and driving the truck out of the plant docks.
674
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GENERAL TEAMSTERS LOCAL
326, AFIILIAIED WITH
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concern-
Ing this notice or compliance with its provisions may be
directed to the Board 's Office , Suite 4400, 600 Arch Street,
Philadelphia, Pennsylvania 19106, Telephone
215-597-7617.