Local 294, Teamsters

National Labor Relations Board - Board Decisions

Jan 19, 1972

194 N.L.R.B. 1144 (N.L.R.B. 1972)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Montgomery Ward & Co., Inc. Case
3-CC-561
January 19, 1972
ORDER DENYING CHARGING PARTY'S
MOTION AND SUPPLEMENTAL
DECISION CLARIFYING DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 21, 1971, a panel of the National Labor
Relations Board to which the Board had delegated its
powers in connection with this proceeding issued its
Decision and Order in this case dismissing the
complaint's allegations that Respondent had engaged
in conduct violative of Section 8(b)(4)(i) and (ii)(B) of
the Act.' The majority decision was subscribed to by
Members Jenkins and Kennedy. Chairman Miller
filed a concurring opinion joining in the result but on
a different ground. Thereafter, on September 13,
1971, the Charging Party filed a Motion for Reconsid-
eration together with a supporting brief.2 In support
of its Motion for Reconsideration the Charging Party
contends that the Board's majority decision and the
Chairman's concurring opinion rest on unsupported
factual premises and are inconsistent with established
Board precedent defining permissible picketing at a
common situs.
The matters raised by the Charging Party's afore-
said motion have been duly considered by the same
panel of the Board which decided the case on July 21,
1971.3
The Board has considered the contentions made in
the moving papers in the light of the record made in
this proceeding and the applicable Board precedent
and finds the contentions without merit. The Board
believes, however, that the concerns expressed by the
Charging Party and the amicus curiae with respect to
the impact of the Board's Decision may in large
measure be due to insufficient explication of the
considerations of law and fact which led Members
Jenkins and Kennedy, on their part, and Chairman
Miller, on his, to conclude that the complaint should
be dismissed. Accordingly, Members Jenkins and
Kennedy and Chairman Miller have decided to
supplement their respective opinions as follows:
1. As set forth more fully in the Trial Examiner's
Decision, the complaint's allegations of unlawful
1 192 NLRB No. 26
2 On September 23, 1971, American Retail Federation filed a brief
amicus curiae in support of the Charging Party's Motion for
Reconsideration.
secondary conduct are based wholly on Respondent's
maintenance of a round-the-clock picket line at
Montgomery Ward's premises during all or substan-,
tially all of the period that the Leaseway mechanics
were on strike. Respondent defended on the ground
that, even though it had no dispute with Montgomery
Ward, it did have a right to picket Leaseway at
Montgomery Ward's premises so long as Leaseway
equipment was on those premises. It based this
defense on the fact that Leaseway mechanics per-
formed their normal work tasks in servicing Leaseway
equipment while such equipment was physically
located at Montgomery Ward's docks.
While not disputing that Leaseway equipment was
at Montgomery Ward's docks during the entire period
of the allegedly unlawful picketing, the proponents of
the complaint contended that the physical presence of
the Leaseway equipment at Montgomery Ward's
premises could not alone bring the round-the-clock
picketing within the standards set out in Moore
Drydock Company, 92 NLRB 547. They argued, more
specifically, that the prestrike maintenance work
which Leaseway performed at Montgomery Ward's
premises was work which Leaseway mechanics
normally performed only during specified portions of
a working day; that although Leaseway equipment
was on Montgomery Ward's premises for all except
the last few hours of the strike's duration Leaseway
employees were absent; and that Leaseway superviso-
ry personnel came on the premises shortly before the
strike was terminated for no purpose other than to
remove Leaseway tractors and thus to minimize the
impact of the strike on Montgomery Ward. These
contentions, had they been proved, would, of course,
have established that Leaseway did not conduct any
of its "normal" prestrike business operations at the
neutral situs on a 24-hour basis and that it did not
operate during the strike at all. And from this it would
have followed that Respondent's round-the-clock
picketing at that situs plainly would have exceeded
permissible bounds.
2. For the reasons set out below, Members Jenkins
and Kennedy found that adequate proof was wanting
to support the contentions made in support of the
material allegations of the complaint. To be sure, the
evidence shows that, under the prevailing prestrike
conditions, Montgomery Ward usually dispatched the
Leaseway equipment for its delivery functions be-
tween the hours of 7 p.m. and 4 a.m. and that, in order
to accomodate Montgomery Ward's scheduling of
deliveries, Leaseway gave one of its mechanics a
standing order to service the equipment on the daily
3 The Board 's referral of the Charging Party's postdecisional motion
accords with established policy. See Enterprise Industrial Piping Company,
118 NLRB I
194 NLRB No. 185
LOCAL 294, TEAMSTERS 1145
basis required during the few afternoon hours
,preceding 7 p.m. when the equipment was normally
located at Montgomery Ward's docks. But there is
also undisputed evidence that Leaseway's prestrike
maintenance work at Montgomery Ward's premises
was not confined exclusively to the few hours
preceding 7 p.m. Thus, there was uncontradicted
testimony by a witness for the Respondent showing
that it was "customary" for Leaseway also to assign
mechanics at "other" (unspecified) times to Mont-
gomery Ward's premises for the purpose of servicing
Leaseway equipment and that the occasion for such
additional servicing depended on the equipment's
mechanical condition-a matter outside the control
of either Montgomery Ward or Leaseway.4 It is thus
apparent that the maintenance work on Leaseway
equipment at Montgomery Ward's premises was not
restricted to , specified or scheduled periods but,
rather, was likely to be performed at various times
during a 24-hour period. While some maintenance
work is done "mostly" in the garage of Leaseway, a
night mechanic is "normally" assigned to Montgom-
ery Ward's premises; "normally" there is not a need
for a daytime mechanic. It was "customary" that
much of the maintenance work be done on the
premises of Montgomery Ward. Joseph Austin, a
Leaseway mechanic, testified that he was regularly
assigned to go over to Montgomery Ward's premises
every day about 3 p.m. to do the greasing on the
equipment while it was daylight; at night he would
check out the lights, brakes, and tires and then return
to Leaseway's shop. It "normally" took him on the
average of 3 to 6 hours to do his job each day.
At no time after the strike did either Leaseway or
Montgomery Ward notify Respondent that Lease-
way's mechanics would no longer service the equip-
ment on Montgomery Ward's premises, or that such
service or maintenance work would be strictly limited
to certain scheduled hours. Evidence is lacking that
Respondent was ever informed Leaseway employees
were no longer performing their regular and custom-
ary work on Montgomery Ward's premises.
These facts satisfy Members Jenkins and Kennedy
that Respondent was justified in viewing the Mont-
gomery Ward docks as a normal work situs for
Leaseway employees and that individuals employed
by Leaseway continued to work there. A different
situation would have been presented had it appeared
either that: (1) during the prestrike period, time
restrictions were in fact imposed on the access of
Leaseway employees to the premises for equipment
maintenance functions or (2) such restrictions were
imposed during the strike and made known to
Respondent so that Respondent could regulate its
picketing of Leaseway accordingly.5 That, however, is
not the case here.
3. Chairman Miller based his concurrence on "the
undisputed evidence that some of the Leaseway
trucks were driven from the Ward lot during the
picketing by Leaseway management officials." In this
connection, Chairman Miller was referring not to the
removal of the Leaseway equipment on September 20,
the last day of the picketing, but rather to record
evidence of the driving of a number of loaded trailers
from the Ward lot by Leaseway officials on dates
between September 15 and 20.
ORDER
It is hereby ordered that the Charging Party's
Motion for Reconsideration of the Decision and
Order as clarified herein be, and it hereby is, denied
for lack of merit.
4 The following testimony by mechanic Clifford Ruel, for example, was
never disputed or explained away in the testimony of any other witness.
Q. Now as a mechanic where do you work?
A Well, mostly we work out of the garage but we go to the
Ward's lot to repair the lights on the trailers and sometimes to grease
them and if a tractor comes in off the road and it does come down for
fuel we go and do an ICC check on it
Q This is done on Montgomery Ward's property?
A. Right.
Q You work there?
A Right
Q When I say you?
A. Anybody, whoever they choose to send
Q. Is there any mechanic that' s normally assigned to
Montgomery Ward's?
A. At night, Joe Ruskin
Q. The nightime [sic] mechanic is Joe Rustin?
A. Right.
Q What about the daytime mechanic9
A Normally there's not much going on to send a mechanic.
Q. In the daytime?
A. Right.
Q Because the equipment is on the road?
A. Right.
Q. Were you ever assigned to work on the Montgomery Ward's
trailers on Montgomery Ward's site?
A Yes, but I worked days and I went down there to change glad
hands, hoses, because they couldn 't move the equipment.
Q. So that you would be working on the premises?
A. Right
Q. And that's customary9
A. Yes.
5 Montgomery Ward was free to protect itself by notifying Respondent
that it did not and would not give Leaseway a right of access to its
premises or that it would do so conditionally and only at specified times.
Absent such notification , we would be circumscribing a picketing union's
lawful right to picket the primary employer at neutral premises at which his
employees are engaged in performing work. Cf. California Laundry & Linen
Supply, 164 NLRB 426, 427.