Highway Truckdrivers & Helpers, Local 107, Etc.

National Labor Relations Board - Board Decisions

Dec 15, 1961

134 N.L.R.B. 1320 (N.L.R.B. 1961)

1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machines , filing or correcting stencils; sorting , routing , dissecting , or marking wrap-
pers; taking bundles or papers from conveyors or escalators ; stacking, jogging, fold-
ing; handling or bundles or mail sacks; distributing , counting of papers ( leaving
or returning ); typing by hand or power machine ; sacking, delivering papers to mailers,
carriers, agents, or newsboys , inserting or dispatching of papers , envelopes, magazines,
or circulars; whether done by hand or power machines , including auxiliary machines
used in preparatory work for making plates , stencils or any devices that may be used
in placing names and addresses on wrappers , or papers now in use or in the future
may be introduced , and jogging of papers or wrappers to be used on any automatic
mailing machine , employed by the commercial shops, i.e., Accurate Mailing &
Distributing Service; American Mailers and Binders ; Cherie Printing Co.; Detroit
Gravure Corporation; Gratiot-Herald, Inc.; Jourdan Co., Inc.; Michigan Advertising
Distributing Co.; Michigan Catholic Co.; and Reliable Mailing Service Co. at their
plants in Detroit , Michigan , excluding all other employees, office and clerical em-
ployees, guards and supervisors as defined in the Act, and other employees covered
by contracts involving work other than specified above .9
3. At all times since October 16, 1959, the above-named Union has been, and
now is, the exclusive representative of all employees in the aforestated appropriate
unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment, within the meaning
,of Section 9(a) of the Act.
4. By failing and refusing to sign the agreement negotiated by the Union and the
commercial shops, dated January 12, 1960, the Respondents have engaged in and are
•engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
0 121 NLRB 115, 123-124.
Highway Truckdrivers & Helpers, Local 107, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Independent and Safeway Stores, Incor-
porated . Case No. 4-CD-46. December 15, 1961
OPINION
The opinion herein is supplemental to our telegraphic order of
April 21, 1961, quashing the notice of hearing.
On September 1, 1960, the Board (Member Fanning dissenting)
had issued a Decision and Determination of Dispute (129 NLRB 1)
in this proceeding in which it found reasonable cause to believe that
'Respondent, Local 107, engaged in picketing the Charging Party,
Safeway, with an object of forcing or requiring Safeway to reassign
.certain truckdriving work from Safeway employees who were mem-
bers of Locals 639 and 660 to other Safeway employees who were
members of Local 107. The Board held that this was a dispute cog-
nizable under Section 10(k) of the Act and, pursuant thereto, made
a determination that Local 107 "is not and has not been lawfully en-
titled to force or require Safeway Stores, Incorporated , to assign
trucking duties to its members rather than to members of Teamster
Locals 639 and 660." Ibid.
134 NLRB No. 130.
HIGHWAY TRUCKDRIVERS & HELPERS, LOCAL 107, ETC. 1321-
I 4 months after the issuance of this Decision . and Determi-
nation of Dispute, the Supreme Court on January 9, 1961, handed
down its opinion in N.L.R.B. v. Radio & Television Broadcast En-
gineers Union Local 1212 International Brotherhood of Electrical'
Workers , AFL-CIO ( Columbia Broadcasting System ), 364 U.S. 573,
hereinafter called the CBS case, in which it set aside a Board deter-
mination of the same type made in the instant case . The Supreme-
Court in the CBS case held that the determination made did not con-
form to the mandate of Section 10(k), and directed the Board "to
decide which of two or more employee groups claiming the right to-
perform certain work tasks is right and then specifically to award
such tasks in accordance with its decision ." 364 U .S. 573, at 586.
Thereafter, on January 19, 1961, Safeway filed as petition with the
Board asking the Board to reopen the instant proceeding , to set aside-
the Decision and Determination of Dispute theretofore made, and to.
make a new determination in accordance with the principles laid
down in CBS. The Board on February 2, 1961, granted Safeway's•
petition and remanded the case for a further hearing which was held-
on February 21, 1961. The parties at the reopened hearing elected
not to adduce further evidence but stood on the record made at the
first hearing. They did, however , file briefs.
As in the original proceeding , Local 107 argued that there did not
exist here a jurisdictional dispute within the meaning of Sections
8(b) (4) (D ) and 10 (k) of the Act. The Decision and Determination
of Dispute , heretofore issued, sets forth the relevant facts . Local 107
had for some 10 years represented the drivers employed at Safeway's•
Wilmington meat-processing plant . On December 31, 1959 , Safeway
discharged the three Wilmington drivers who comprised the entire,
bargaining unit represented by Local 107 and arranged for the driving
work previously done by these employees to be done by the drivers at
its Landover, Maryland , and Kearney, New Jersey , plants. Safe-
way's drivers at the latter plants were represented by Teamsters
Locals 639 and 660 , respectively. Thereafter Local 107, on behalf of'
the three discharged drivers , picketed the Wilmington plant with,
signs proclaiming that Safeway was unfair to Local 107.
Having reconsidered the entire record in the case including all
briefs filed by the parties , and having the guidance of the Supreme.
Court in its CBS opinion, we are now of the view that Local 107's,
contention is correct and that the labor dispute here is not -a juris-
dictional dispute within the meaning of Sections 8(b) (4) (D) and:
10(k) of the Act.'
IIt was pursuant to this determination that the telegraphic notice referred to at the.
outset of this opinion was sent to the parties . Oral argument was not held In this case-
as in our view the record and briefs adequately set forth the issues and the positions of"
the parties.
-1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we read it, the Supreme Court of the United States in the CBS
case not only rejected the type of determination made in that case
-and in the instant case but rejected also the Board's underlying view
of the scope and interplay of Sections 8(b) (4) (D) and 10(k). Thus,
.although the facts in the instant case, as heretofore found, might be
deemed to fall within the literal terms of the Section 8(b) (4) (D)
proscription, the "Supreme Court noted in CBS that Section
8('b) (4) (D) does not stand alone but is supplemented by Section
10 (k). The two' provisions must be read together. So read, the pro-
'visions apply, as the Supreme Court noted, to disputes between "two
,or more employee groups claiming the right to perform certain work
tasks . . ." 364 U.S. 573 at 586.
The thrust of the CBS decision was, to be sure, directed -at the
Board's misconception of the kind of determination required by Sec-
tion 10 (k) . But, in terms, the Supreme Court said it was "the Board's
,responsibility and duty to decide which of two or more employee
groups claiming the right to perform certain work tasks is right and
,then specifically to award such tasks in accordance with its decision."
364 U.S. 573, at 585. Implicit in this directive is the proposition that
Sections 8(b) (4) (D) and 10(k) were designed to resolve competing
claims between rival groups of employees, and not to arbitrate dis-
putes between a union and an employer where no such competing
claims are involved. Certainly it was not intended that every time an
employer elected to reallocate work among his employees or supplant
,one group of employees with another, a "jurisdictional dispute" exists
within the meaning of the cited statutory provisions.
The interpretation which we put upon the CBS decision is cogently
reinforced in John A. Penello, Reg. Dir. v. Local Union No. 59, Sheet
Metal Workers International Association, AFL-CIO (E. I. DuPont
de Nemours & Co.), 195 F. Supp. 458 (D.C. Del.), in which Judge
Wright made a painstaking analysis of the statutory provisions here
in issue in the light of the CBS decision. Judge Wright, too, con-
cluded that the application of Sections 8(b) (4) (D) and 10(k) was
confined to disputes "between rival groups of employees" and not to
-disputes between an employer and a union as such.
We believe, moreover, that the facts of this case present a situation
not unlike that in International Brotherhood of Electrical Workers,
Local 292, AFL-CIO (Franklin Broadcasting Company (Radio
Station WMIN) ), 126 NLRB 1212, where the Board quashed a notice
.of hearing in a Section 10(k) proceeding on the ground that the
dispute there involved arose, not out of a contest between rival groups
of employees for the assignment of work, but rather out of a union's
effort to obtain reemployment of technicians whom the employer had
discharged because he had transferred certain work.
hh^
HIGHWAY TRUCKDRIVERS & HELPERS, LOCAL 107, ETC. 1323
The facts in the instant case, in our view, do not disclose a "jurisdic-
tional dispute"' as contemplated in Sections 8(b) (4) (D) and 10(k).
'There was not present here any real competition between unions or
groups of employees for the work. Locals 639 and 660 which, like
Local 107, represented truckdrivers and belonged to the same Inter-
national, did not press Safeway for the work. The real dispute is
wholly between Local 107 and Safeway and concerns only Local 107's
attempt to retrieve the jobs of its members, jobs which had been
secured for more than 10 years by a series of collective-bargaining
agreements until Safeway suddenly terminated the bargaining rela-
tionship on December 31, 1959. The strike here was in protest against
-Safeway's action and also a concerted effort to preserve Local 107's
historical bargaining status. To regard this as a jurisdictional dis-
pute in the statutory sense, i.e., as a dispute between competing groups
of employees "claiming the right to perform certain work tasks," is to
distort plain congressional intent.
It is apparent that the dispute here is not in its very nature the
kind that Congress devised Section 10(k) to resolve. In the normal
.situation, the Section 10(k) proceeding, is designed to determine
which of two competing employee groups is entitled to do the disputed
work. In the normal situation also, the employer is willing to assign
the work to either group if the other will just let him alone. We do
not mean to suggest that this is the only kind of situation where
Section 10(k) is applicable. But the normal situation demonstrates
how far removed is the instant case where the employer by his uni-
lateral action created the dispute, by transferring work away from
the only group claiming the work. We venture the suggestion that
nothing in the lengthy legislative history of the jurisdictional dispute
provisions can be read as suggesting that Congress conceived this as
the type of dispute to which those provisions were to be regarded as
applicable.
We hold that the conduct does not give rise to a "jurisdictional
dispute" within the meaning of Sections 10(k) and 8(b) (4) (D) of
the Act as charged.
MEMBER FANNING, concurring :
I agree with Chairman McCulloch and Member Brown that the
,conduct involved in this case does not give rise to a jurisdictional
dispute within the meaning of Sections 10 (k) and 8 (b) (4) (D) of the
Act. I reach this conclusion on the basis of the reasoning set forth in
my dissenting opinion in the original decision in this case, which
issued prior to the Supreme Court's decision in the CBS case. I be-
lieve the reasoning set forth therein affords a sufficient basis for
quashing the notice of hearing in this proceeding. Accordingly,
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although I am in basic agreement with Chairman McCulloch and
Member Brown as to their interpretation of the thrust of the CBS
decision, I deem it unnecessary to rely upon that decision for the
result reached herein.
MEMBERS RODGERS and LEEDOM , dissenting :
We readily agree with the conclusion of Chairman McCulloch and
Member Brown that the Supreme Court in the CBS case rejected the
type of determination previously made in this case . However, we
cannot read the Supreme Court's opinion as a rejection of the Board's
views on the applicability of Sections 8(b) (4) (D ) and 10 ( k) to work
assignment disputes.
In the first place , we find nothing in the Supreme Court's opinion
in CBS, as our colleagues apparently do, which requires that the plain
wording of Section 8(b) (4) (D ) be ignored . Section 8(b) (4) (D),
clearly makes it an unfair labor practice for a labor organization to•
engage in, or to induce or encourage any employee to engage in, a
strike or refusal to work, or to threaten , restrain , or coerce any person
with an object of forcing or requiring any employer to assign particu-
lar work to employees in one labor organization rather than to em-
ployees in another labor organization . This is precisely what Local
107 did here . Local 107 established a picket line at Safeway's Wil-
mington plant with an object of forcing Safeway to assign certain
truckdriving work to members of Local 107 rather than to other Safe-
way employees who were represented by Teamsters Locals 660 and
639. As we stated in the original Decision and Determination in this
proceeding issued on September 1, 1960, "[s]uch conduct is plainly
prohibited by Section 8 ( b) (4) (i) and (ii) (D)."
Secondly, the Supreme Court did not hold, as our colleagues assert,
that there must be "competing claims between rival groups of em-
ployees" for a dispute to exist within the meaning of Sections
8(b) (4) (D) and 10 ( k). To be sure , we do not have here such a
dispute . But the Supreme Court itself recognized that the thrust of
a jurisdictional dispute may be much broader than this . Thus, the
Supreme Court specifically pointed out that Sections 8 (b) (4) (D) and
10(k) extend "to jurisdictional disputes between unions and unorgan-
ized groups as well as to disputes between two or more unions ...'r
364 U . S. 573 , at 584. Obviously, a "dispute" between an unorganized
group and a union can arise only where an employer assigns work to.
an unorganized group and a union contests that assignment . There-
fore , contrary to what our colleagues seem to be saying , we believe
that the Supreme Court expressly acknowledged the fact that the
applicability of Sections 8(b) (4) (D ) and 10(k) is not limited to the
so-called "traditional" type of jurisdictional dispute where two unions
actively compete for certain work and the employer is a neutral victim
of their competition . The portion of the Supreme Court's opinion
which we have quoted supports the validity of the principle that an
PACIFIC STATES STEEL CORPORATION 1325
active interest by an employer is having disputed work done by one
group rather than another does not make Sections 10(k) and
8 (b) (4) (D) inoperative? In short, the fact that Safeway had sound
economic reasons for assigning the work to Locals 660 and 639 mem-
bers, and wanted the work performed by those employees, does not
make Safeway ineligible for protection under the Act.
Furthermore, in our view, the above-quoted expression by the
Supreme Court complements the well-established principle that, so
far as Sections 10(k) and 8(b) (4) (D) are concerned, whether or not
the union, or group, to whom the work has been assigned actively as-
serts a right to the work and opposes the claim of another union or
group, is not material.' It follows that whatever position Locals 660
and 639 may have taken with respect to the work assigned to them
is unimportant.
For the foregoing reasons, we would find, as we did in the original
Decision, that a dispute within the meaning of Sections 8(b) (4) (D)
and 10(k) does exist, and, accordingly, would proceed to determine
that dispute.4
a See, e.g., Daniel P. Dooley, Acting Beg. Dir. v. Highway Truckdrivers and Helpers,
Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (Safeway Stores), 182 F. Supp. 297 (D.C. Del.), the companion Section 10(1)
proceeding, wherein the court enjoined Local 107's conduct. Cf. International Long-
shoremen's and Warehousemen's Union, et al. v. Juneau Spruce Corporation, 189 F. 2d
177, 188 (C.A. 9), affd., 342 U.S. 237.
3 W. J. Hedrick, at al., d/b/a Industrial Painters & Sand Blasters, 115 NLRB 964, 968;
Tip Top Roofers, 126 NLRB 1277; Juneau Spruce Corporation, 82 NLRB 650.
* In addition, Member Leedom would point out, as he did in the original decision herein,
that while he joined in the Franklin case, 126 NLRB 1212, in holding that 10(k) was
Inapplicable where the picketing union was striking to protect its bargaining status and
secure the reemployment of discharged employees, he regards the instant situation as
distinguishable. Here, the Employer made an administrative change in its method of
operations affecting the drivers, represented by Local 107 pursuant to a contract which
was to expire on December 31, 1959, but only after unsuccessful efforts to arrange a meet-
Ing for the purpose of negotiations, and the Employer coupled the change with an offer to
Local 107, which was rejected, to make every attempt to find comparable work for the
drivers affected. Moreover, as Crawford's statement made clear, Local 107, unlike the
union in the Franklin case, was striking to secure the assignment of the work to Its
members, and was interested only incidentally, if at all, in its representative status and
the employment of the displaced drivers. Thus, while Local 107 had theretofore been
the bargaining representative of these drivers, the dispute at the time of the picketing
was, by reason of the change, one involving the assignment of work. Cf. Member Leedom's
dissent in American Wire Weavers' Protective Association, AFL-CIO, at al. (The Lindsay
Wire Weaving Company), 120 NLRB 977, 986.
Pacific States Steel Corporation and United Steelworkers of
America , AFL-CIO, Petitioner. Case No. 00-R-1093. Decem-
ber 15, 1961
THIRD SUPPLEMENTAL DECISION AND ORDER
On August 31, 1944, following a Board-directed election,' the Board
certified United Steelworkers of America, District 38, CIO, as the
1 Paotfio States Steel Corporation, 57 NLRB 1084 and 57 NLRB 1220.
134 NLRB No. 132.