Loc. 804, Delivery & Warehouse Employees

National Labor Relations Board - Board Decisions

Nov 15, 1967

168 N.L.R.B. 214 (N.L.R.B. 1967)

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 804 , Delivery and Warehouse Employees, In-
ternational Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and
Gimbel Brothers , Inc. and Joseph Eletto Transfer,
Inc. and Local 814, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Help-
ers of America . Case 29-CD-49
November 15, 1967
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Gimbel Brothers, Inc., under
Section 8(b)(4)(D). The charges allege, in sub-
stance, that Local 804, Delivery and Warehouse
Employees, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, induced and encouraged employees to
strike, or refuse to perform services; and
threatened, restrained, and coerced Gimbel
Brothers, Inc., with an object of forcing or requiring
Joseph Eletto Transfer, Inc., an employer, to assign
particular work to Local 804, rather than to Local
814, also affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Pursuant to notice, a hearing
was held before Joan Zweifel, Hearing Officer, on
August 8 and 11, 1967. 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.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed. Local 814, Teamsters, filed a
brief, which has been duly considered.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE COMPANIES
The parties stipulated , and we find , as follows:
Gimbel Brothers , Inc.,' is a retail department
store in the New York City metropolitan area. Its
principal office and place of business is in New
York City, and it operates a distribution warehouse
in Long Island City, New York. During the past
year , Gimbel ' s, in the course of its business opera-
Hereinafter called Gimbel's
s Hereinafter called Eletto
tions, derived in excess of $500,000 in gross
revenues, and purchased goods, supplies, and com-
modities worth in excess of $50,000 directly from
suppliers located outside the State of New York;
during the same period, Gimbel's shipped directly
to customers located outside the State of New York
goods, supplies, and commodities worth in excess
of $50,000.
Joseph Eletto Transfer, Inc.,2 performs trucking
services, and maintains its principal office and place
of business in Valley Stream, Long Island, New
York. During the past year, Eletto, in the course
and conduct of its business operations, performed
services worth. in excess of $50,000 directly to
points located outside the State of New York.
We find, in accordance with the stipulation of the
parties, that Gimbel's and Eletto are employers en-
gaged in commerce within the meaning of Section
2(6) and'(7) of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED,
The parties stipulated , and we find , that Local
804, Delivery and Warehouse Employees , Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America 3 and
Local 814, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America,' are labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The disputed work which gave rise to this
proceeding concerns the delivery of furniture and
bulk merchandise, and the incidental work of
binning and sorting same , at Gimbel 's New York
division warehouse in Long Island City.
B. The Facts
As noted above, Gimbel's operates a distribution
warehouse in Long Island City. For a number of
years prior to July 1, 1967, Gimbel's contracted
with United Parcel Service for the delivery of furni-
ture and bulk merchandise from, and the incidental
work of binning and sorting at, its warehouse.
United Parcel's employees were represented by
Local 804. It also appears that, prior to July 1,
1967, Gimbel's had a contract with Eletto, under
which Eletto transported furniture and bulk
merchandise between Gimbel's stores and the
warehouse, and made deliveries to model homes
and to customers on an emergency basis. Eletto's
3 Hereinafter called Local 804
" Hereinafter called Local 814
168 NLRB No. 35
LOC. 804, DELIVERY & WAREHOUSE EMPLOYEES 215
employees, about eight in number, were
represented by Local 814.
In April 1967,5 Gimbel's notified United Parcel
Service that Eletto would be the major delivery
contractor as of July 1. A few days later, Local
804's president, Thomas Simcox, advised Gimbel's
that Eletto would have to negotiate a contract with
Local 804; that Local 804 had the furniture delivery
domain for department stores in the metropolitan
New York City area; and that Local 814 was not
qualified, or "eligible" to do the work. Thereafter,
in June, Simcox called Gimbel's and advised that if
Eletto did not affiliate with Local 804, he (Simcox)
would get in touch with the other unions which
represent Gimbel's employees and "surround the
store." Simcox advised Eletto directly that unless
Eletto had a contract with Local 804, "there would
be no Eletto trucks going out of Gimbel's
warehouse"; at the same time, Simcox told Eletto
its contract with Local 814 was "no good." On June
26, Local 804 picketed several Gimbel locations,
including the warehouse, with signs stating "Gim-
bel's unfair to Local 804, affiliated with the Interna-
tional Brotherhood of Teamsters." On Monday,
July 3, Eletto employees began making Gimbel
deliveries. Local 804 again picketed on July 17,
with the same picket sign legend hereinbefore
described, and as a result, a number of truckdrivers
delivering merchandise to Gimbel's warehouse and
stores refused to cross the picket lines.
C. Contentions of the Parties
At the hearing, Local 804 claimed it was entitled
to the disputed work on the basis that all depart-
ment store furniture and bulk merchandise delivery
work in New York City was within its jurisdiction.
Local 814, on the other hand, claims the work as
contractual representative of Eletto's employees.
Gimbel's states it is neutral in the dispute, while
Eletto claims that it is bound by its contract with
Local 814.
D. Applicability of the Statute
Before the Board proceeds with a determination
of dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to
believe that Section 8 (b)(4)(D) has been violated.
As stated above, the uncontroverted record
testimony establishes that Respondent Local 804
threatened to picket, and did picket , Gimbel' s. It is
further established that one object of this picketing,
as stated by Respondent 's president , Simcox, to
Eletto and Gimbel ' s and reiterated by Simcox at the
hearing , was to force or require Gimbel's and Eletto
to assign particular work to members of Local 804,
rather than to members of Local 814. Accordingly,
we find, on the basis of the entire record, that there
is reasonable cause to believe that a violation of
Section 8(b)(4)(D) of the Act has occurred, and that
the dispute is properly before the Board for deter-
mination under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after due consideration of the various relevant
factors.6 The following factors are relevant in deter-
mining the claims of the parties herein:
1. Certification and collective-bargaining agree-
ments
The record reflects that there is no Board certifi-
cation relative to the disputed work.
Local 804 filed no brief and, except for asserting
generally that it had jurisdiction over the work, did
not spell out the basis for its claim. It did, however,
introduce into evidence a copy of its contract with
United Parcel Service, Inc., encompassing em-
ployees of that Company "covered by the jurisdic-
tion" of Local 804. On the other hand, Local 814
claims that its contract with Eletto, covering
"chauffeurs, helpers, warehousemen, packers,
polishers, finishers, Hi-Lo operators and porters,"
entitles it to the work.
As described previously, Gimbel's contracted
with Eletto, as of July 1, 1967, to do the work in
question, and Eletto assigned the work to its own
employees, represented by Local 814. Local 804's
contract is of no relevance to the instant proceed-
ing, as that contract is only with United Parcel, and
no one is here questioning United Parcel 's assign-
ment of any work it may have to Local 804. Neither
union has a contract with Gimbel's. Local 814's
contract with Eletto, though speaking only of chauf-
feur (driving) and warehouse work generally, ap-
pears to encompass the work here in issue. Ac-
cordingly, we find that Local 814 has a stronger
contractual claim to the work than Local 804, at
least insofar as Eletto' s assignment is concerned.
2. Employer, area, and industry practice
The record discloses that members of both Local
804 and Local 814 have in the past performed furni-
ture delivery work within the New York City
metropolitan area. Although employees of United
Parcel, represented by Local 804, had previously
performed the precise work in dispute for Gimbel's,
members of Local 814, employed by Eletto, had
also performed work of this type for Gimbel's, such
All dates refer to 1967, unless otherwise indicated
International Association of Machinists, Lodge No 1743, AFL-CIO
(J A Jones Construction Co ), 135 NLRB 1402
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as interstore delivery work, and deliveries of furni-
ture to model homes and to customers on an emer-
gency basis. We are unable to conclude from this
record that employer, area, and industry practice
favors either group of employees.
3. Relative skills,and efficiency of operation
A representative of Gimbel's testified at the hear-
ing to the effect that for several years it had ex-
pressed to United Parcel Service its dissatisfaction
with the kind of service it was receiving, including
the cost of that service, and its efficiency. On the
other hand, Local 804 presented evidence at the
hearing that members of Local 814 employed by
Eletto wore no uniforms, had no helpers, and drove
trucks which compared unfavorably with United
Parcel trucks in maintenance and appearance. It
would appear that Gimbel's is fully satisfied with
Eletto's assignment of the work to members of
Local 814, as evidenced by the fact that Gimbel's
transferred the work from United Parcel to Eletto.
We find, on the basis of the entire record, that mem-
bers of Local 814, employed by Eletto, are at least
as capable of performing the disputed work as are
members of Local 804.
4. Action of the Joint Council of Teamsters
The record shows that Local 804 took this
dispute to the Joint Council of Teamsters. How-
ever , on June 27, 1967, the Joint Council Executive
Board ruled that " it could not render a decision
pending the outcome of the NLRB hearings."
CONCLUSIONS AS TO THE MERITS OF THE DISPUTE
Upon consideration of all pertinent factors, we
conclude that employees of Eletto, represented by
Local 814, are entitled to perform the work in
dispute. Employees of Eletto, represented by Local
814, are fully capable of performing the work in
question, and it appears that both Gimbel's and
Eletto, which assigned them the work, are satisfied
with the quality of their work and the cost of em-
ploying them. Moreover, the instant assignment of
the disputed work to Local 814 is consistent with
the explicit provisions of the collective-bargaining
agreement between Eletto and Local 814, and with
the past practice of Eletto, and is not inconsistent
with area or industry practice. We conclude that
Gimbel's and Eletto's assignment of the disputed
work to employees represented by Local 814
should not be disturbed. We shall, accordingly,
determine the existing jurisdictional dispute by
deciding that Local 814, rather than Local 804, is
entitled to the work in dispute. In making this deter-
mination, we are assigning the disputed work to the
employees of Eletto, who are represented by Local
814, but not to that Local or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings, and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees employed by Joseph Eletto
Transfer, Inc., who are represented by Local 814,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, are
entitled to the work of delivering furniture and bulk
merchandise, and the incidental work of binning
and sorting, at Gimbel Brothers New York Divi-
sion warehouse in Long Island City, New York.
2. Local 804, Delivery and Warehouse Em-
ployees, International Brotherhood of Teamsters,
Chauffeurs,, Warehousemen and Helpers of Amer-
ica, is not entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require Gimbel
Brothers, Inc., or Joseph Eletto Transfer, Inc., to
assign the above-described work to employees
represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 804, Delivery
and Warehouse Employees, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, shall notify the Regional
Director for Region 29, in writing, whether or not
it will refrain from forcing or requiring Joseph Elet-
to Transfer, Inc., and Gimbel Brothers, Inc., by
means proscribed by Section 8(b)(4)(D) of the Act,
to assign the work in dispute to employees
represented by Local 804, rather than to employees
of Joseph Eletto Transfer, Inc., represented by
Local 814.