Local 294,Teamsters

National Labor Relations Board - Board Decisions

Jul 21, 1971

192 N.L.R.B. 155 (N.L.R.B. 1971)

LOCAL 294, TEAMSTERS
Local 294, International Brotherhood of Teamsters,
"Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Montgomery ' Ward & Co., Inc. Case
3-CC-561
July 21, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 5, 1971, Trial- Examiner Thomas S.
Wilson issued - his Decision in the above-entitled
proceeding, finding that the Respondent Union had
not engaged in the unfair labor practices alleged in the
complaint and recommending that, the complaint be
dismissed, as set forth in the attached Trial- Examin-
er's Decision. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the Respondent filed a brief in
opposition to the General Counsel'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
powers in connection,with this case to a three-member
panel. -
The Board- has reviewed the rulings of the Trial
Examiner made at ` the hearing arid' finds that no
prejudicial error ` was committed. _ The rulings are
hereby, affirmed. The Board has considered the Trial
Examiner's ,Decision,, the- exceptions and briefs, and
the entire record in the case and hereby adopts the
findings,' conclusions,, and, recommendations of the
Trial-Examiner:
-ORDER
Pursuant to Section 10(c) ` of the National Labor
Relations Act, as amended, the National Labor
Relations "Board adopts as, its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
CHAIRMAN MILLER, concurring:
I agree that the picketing by Leaseway mechanics of
the Montgomery Ward lot where Leaseway trucks
were, parked was primary in nature. I base this
conclusion, however, not on, the fact that a mechanic
was regularly scheduled to work there 1 to 6 hours a
day, which, alone could not bring the 24-hour
picketing- within 'the Moore Dry Dock standards,2 I
base it on the undisputed evidence that some of the
Leaseway trucks were driven from the Ward lot
during the ' picketing by' Leaseway management
officials. As the Court of Appeals for the District of
192 NLRB No. 26
155
Columbia Circuit has said, "when an employer .. .
moves . . . a piece of equipment onto the property of
someone else, for a normal business purpose, striking
employees may peaceably picket that equipment even
though none but supervisory employees are on or
about it." 3 For this reason alone, I would dismiss the
complaint.
i Since the record is devoid of evidence showing anything other than an
ordinary lessor-lessee relationship between Leaseway and 'Ward, 'the
primay and secondary employers,_sespectively, -here ; we-disavow the
Trial Examiner's findings of "practically a joint venture" arrangement
between the said parties.
2 Painters District Council No. 38, Brotherhood of Painters, - Decorators
and Paperhangers of America, AFL-CIO (Edgewood Contracting Company),
153 NLRB 797.
3 Seafarers International Union of North Ameriec, Atlantic & Gulf
District, Harbor and Inland Waterways Division, AFL-CIO [Salt Dome
Production Co.] v. N.LRB., 265 F.2d 585, 590. Accord New Power Wire
and Electric Corp. and'P & L Services, Inc. v. N. L. R. B., 340 F.2d 71 (C.A.
2).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon a charge duly
filed on September 16, 1970, and amended on September
18, 1970, by Montgomery Ward & Co., Inc., herein referred
to as the Charging Party or as Ward, the General Counsel
of the National Labor Relations Board, herein referred to
as the General Counsel 1 and the Board, respectively, by the
Regional Director for Region 3, Buffalo, New York, issued
his complaint dated October 14, 1970, against Local 294,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein referred to
as the Respondent or the Teamsters.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(bX4)(i)(ii)(B)
and Section 2(6) and (7) of the Labor-Management
Relations Act, 1947, as amended, herein referred to as the
Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying-the commission of
any unfair labor practices.
Pursuant to notice, a hearing thereon was held before me
in Albany, New York, on December 1, 1970. All parties
appeared at the hearing, were represented by counsel, and
were afforded full opportunity to be heard, to produce and
cross-examine witnesses, and to introduce evidence materi-
al and pertinent to the issues . At the conclusion ' of the
hearing, oral argument was waived. Briefs were received
from General Counsel and Respondent, on December 30,
1970.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
I This term specifically includes the attorney appearing for the General
Counsel at the hearing.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE CHARGING PARTY
Montgomery Ward is, and has been at all times material
herein, a corporation duly organized under , and existing by
virtue of, the laws of the State - of New York. At all times
material herein, Montgomery Ward has maintained an
office, retail store, and place of business at 150 Broadway,
in the city of Menands ,,and the State of New York, herein
called the Menands store, and various other , retail stores,
places of business, warehouses, and other facilities in the
States of !,New York, Maryland ,) and various other States,
and is, and has been at all times material herein , engaged at
such retail stores and locations in the : sale and distribution
of various retail products . The Respondent's Menands
store, located at Menands , New York, is the only facility
involved 'in-- this proceeding. During the ' past year,
Montgomery Ward , in the course and conduct of its
business - operations , sold and distributed products, the
gross value of which exceeded $500,000. During the same'
period , Montgomery Ward shipped and transported
products valued in excess of $50 ,000 from its place of
business in interstate commerce directly to States of the
United States other than the State of New York. During the
same period of time, Respondent received goods valued in
excess of $50,000 transported to its place of business in
interstate commerce directly from States of the United
States other than the State of New York.
Leaseway of Eastern New York, Inc., herein called
Leaseway, is, and has been at ,all times material herein, a
corporation duly organized under , and existing by.virtue of,
the laws of the State of New York.
At all times material herein , Leaseway has maintained its
principal 'office and place of business at Menands, New
York, and has been engaged at said location in the truck
leasing business . During the past 12 months Leaseway, in
the operation of ` its business ,, purchased and received
materials valued in excess of $50 ,000 directlyfrom outside
the State of New York or. from other enterprises located
within the State of New York which receives said goods and
materials directly from outside the State of New York.
Accordingly, as the above facts are admitted, in
Respondent's - answer, .I find that Montgomery Ward and
Leaseway each is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6), and(7), of the Act and is a person , within the
meaning of Section .8(b)(4)(i)(ii)(B) of the Act.
II. THE RESPONDENT
Local 294, International Brotherhood' of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization admitting to membership employees of
tease-way and isa labor organization within the meaning of
'Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
At the premises known as 150 Broadway, Menands, New
York, the Charging Party, Montgomery Ward, herein
Ward, operates a retail store together , with a,-,separate
warehouse and distribution center from which Ward
supplied other Ward retail outlets in eight,States.„
There are three entrances to the Ward p' rop'erty-at', 150
Broadway . The center entrance leads directly and exclu-
sively to a large customer parking area . The two other
entrances to the property lead to the warehouse and
distribution center with its truck loading docks as well as to
smaller customer parking areas.
In connection with its warehouse and distribution center
operations, Ward employs 5 short haul and 16 long haul
drivers . The drivers operate some 23 tractors and 70 odd
trailers . Each of these pieces ' of equipment is painted in"the
usual Ward colors with the name "Montgomery Ward"
prominently displayed thereon . Each piece "of equipment
also has on it a small 2- by 3- inch , decal withthe; name
"Leaseway" thereon denoting the owner of such equipment
as required by law. The rubber mudguards also,have,the
name "Leaseway". molded in them . When not in use all of
this equipment is-parked at or near the leading docks of the
warehouse and -distribution center. ` The Ward drivers are
dispatched with the requisite equipment `'from the ware-
house between 7 p.m. and4 am. -as°required. 'Ward
employees load and unload the trailers.
Ward leases this half million dollars worth ' of automotive
equipment from Leaseway of Eastern New York, Inc.,
which has its main office and garage facility locatedat 279 ,
Broadway in Menands . Under the terms of the lease of the
above -equipment ,between Ward, and Leaseway, the
maintenance and-repair of the aforementioned' automotive
fleet " is- the responsibility of Leaseway..During, all times
material herein this maintenance and repau `work, Leaseway,
performed eitheratits own"facility nextto279BBròadway, if
major, or at the distribution, center of 'War`at ` 150
Broadway, if' minor. The mechanics performing 'his,work
in either case were -mechanics employed by Leaseway.,
Formerly the Leaseway mechanics used, to- go to 150
Broadway to do maintenance and make repairs on the
equipment in response to telephone requests made by
Ward's officials . About a month prior to the events in
question here, or sometime,in August 1970,, Leaseway
assigned one of its mechanics the re gular daily duty at
about 3 p .m. to go to 150 Broadway' to.Ninspect the
equipment there and to make the necessary maintenance
and minor repairs `uponhat equipment. Usually ' 'this'
assignment at 150 Broadway would be completed by^'the
Leaseway mechanic in 3 to 4 hours = after a which the
mechanic would return to the Leaseway facility.
Teamsters Local 294 was, the certified and recognized,
bargaining representative'for the Leaseway mechanics in
collective bargaining with Leaseway. In August, ;,'and
September, `Local 294 ` and Leaseway were engaged in
negotiating a renewal agreement covering these Leaseway
mechanics . On or about September 15 these negotiations'
broke down. Because of this development the Leaseway
mechancis went out on strike . Local,294placed apicket line,
arount the Leaseway office and-facility . The mail-order
locality of Ward was not picketed. '11 1
Local 294 placed pickets 24 hours per,day at,thertwo
entrances at 150 Broadway which led to the warehouse. axed
distr button 'center as well as to ' the ' smaller ' customer
LOCAL 294, TEAMSTERS 157
parking lots. When the,picketing, began there were 13
Leaseway tractors and-between 23 and 40 trailers parked at
the distribution center. The entrance to 150 Broadway
leading to the large customers' parking lot was not picketed.
,The Ward -drivers -were also represented by Teamsters
Local 294. Although Local 294 had no dispute with Ward'
the Ward drivers voted to honor the picket line of Local 294
and so refused to cross the picket line. Hence Ward had no,
drivers to be dispatched so that the leased automotive
equipment remained parked and unmoving at the Ward
warehouse loading docks during the strike.
,On„Septembery20 supervisory officials of Ward and of
Leaseway drove all the tractors from the Ward warehouse,
to. the Leaseway facility thus ; leaving only the trailers
parked' at the warehouse without locomotive power. With
the, tractors returned to the Leaseway premises, the
picketing at 1,50Broadway ceased.
On the evening of September 20 Leaseway and Local 294
agreed upon acollective-bargaining agreement covering the
Leaseway mechanics . There has been no picketing at
Leaseway or Ward since that time.
It was stipulated that the picket signs used by Local 294
all read as follows: "Mechanics of Leaseway of Eastern
New York, Inc. on Strike. Teamster Local 294."
B. Conclusions
The gravamen of the complaint herein is that Respondent
Teamsters, representing the mechanics of Leaseway,
engaged in an illegal secondary boycott by picketing at
Ward's with the object of forcing "neutral" Ward to cease
doing business with "primary" Leaseway during a labor
dispute the Teamsters had with Leaseway.
Leaseway is engaged in the business of leasing automo-
tive equipment to third persons, in this instance to Ward.
Under the terms of the lease with Ward or, at least, the
practice under that lease, Leaseway repaired and main-
tained the leased property and permitted it to be parked or
housed on Ward property when not in use by Ward.
Leaseway performed its maintenance obligation under the
lease on the leased equipment either at its own facility or on
the Ward property as was most convenient. Originally
Leaseway mechanics did maintenance work on the
equipment at Ward's in response to telephone requests by
Ward but, prior to the beginning of the picketing,
Leaseway, obviously with Ward's consent, had daily
assigned one mechanic to do such maintenance work to the
equipment while it was parked on Ward's property from 3
p.m. until that maintenance had been completed, usually by
7 p.m. Although the equipment so leased bore Ward's name
and colors, it also bore markings denoting Leaseway's
ownership thereof in the form of a small 2- by 3- inch decal
together with the rubber mudguards with the Leaseway
name molded thereon.
Thus it is clear that Leaseway was carrying on its regular,
normal, and routine equipment leasing business with Ward
24 hours per day on and off Ward's property. Even though
the Leaseway mechanic may have been doing his regularly
scheduled maintenance work on the leased equipment
generally only from 3 to 7 p.m. daily, there is no evidence in
this record, especially in the absence of the lease agreement
itself, that Leaseway was restricted to that 3 to 7 p.m. period
for the performance of the required maintenance work or
that Ward could not have required maintenance work in an
emergency at any time of the day or night on-or off Ward's
property.
Even General Counsel's brief recognizes that Leaseway
and' Ward were performing their mutual business at a
"common situs," to wit, Ward's store and' distribution
center. But in his brief General Counsel maintains ' that
Respondent violated the rules of common situs picketing as
explicated in the Moore Dry Dock case, 92 NLRB 547,' by
reason of'the fact that Respondent maintained a 24-hour-
per-day picket line at two'of the three entrances to Ward's
property- where, admittedly, a part at least of Leaseway's
leased equipment was parked and consequently Respon-
dent picketed Ward's property at times when no Leaseway
mechanics, were doing maintenance work to the leased
equipment on the Ward property. In fact the record
indicates that during the 4 days of picketing at Ward's, no
Leaseway mechanic did any maintenance work while they
were on strike against Leaseway. Thus the'Leaseway strike
accounts for the fact that no Leaseway employee did any
work on the leased property on Ward's property during the
period of the strike. Nor did the leased equipment move
during that period on or from the Ward's property because
the Ward drivers, members of the same Teamsters Local as
the Leaseway mechanics, decided to honor the Respondent
picket line at Ward's.
This claim that Respondent picketed Ward at a time
when no Leaseway employees were on the property is the
only violation of the recognized common situs picketing
rules General Counsel could discover. It is the gravamen of
General Counsel's case. In the light of the above facts, this
contention is a weak, if not broken, reed upon which to
claim a violation of Section 8(b)(4)(i)(iiXB) of the Act.
In the estimation of this Trial Examiner, Respondent
here was engaged in direct, primary picketing of the struck
employer's business of leasing automotive equipment to
Ward and maintaining that equipment on the lessee's
property as required or permitted by the lease agreement
between Leaseway and Ward. This leasing business was a
24-hour-per-day business and, so far as this record shows,
maintenance could be required also on a 24-hour-per-day
basis at the Ward property.
Respondent and the mechanics had the right to picket
their employer's business wherever it was being conducted.
That this happened to be a 24-hour-per-day business
conducted at least in substantial part on Ward's property is
unfortunate for Ward. Ward got itself embroiled here either
by the terms of the lease with Leaseway or the practice it
permitted thereunder. The practice under the Ward-
Leaseway agreement created practically a joint venture and
thus more than just an ordinary common situs situation.
Ward could have protected itself from such primary
picketing by its lease agreement with Leaseway. It failed to
do so. This often happens in these close corporate business
associations where it becomes difficult to distinguish the
employees of one corporate employer from those of the
associated corporate employer.
Even if this be considered the ordinary common situs
situation, I would have to recommend the dismissal of the
complaint here for the reason that Respondent not only
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abided - by the judicially accepted rules of common situs
picketing , but did its best to protect Ward from the
corporate entanglement which Ward and Leaseway had
created. Not only did the picket signs clearly identify
Leaseway • as the only employer being picketed, but
Respondent , even kept Ward's customer entrance free of the
picket , because only the two entrances used by the
Leaseway equipment were picketed . The pickets were as
close to the equipment involved as was possible without
Ward's permission to picket at the loading dock . Further-
more the picket lasted only during the period there was a
possibility of moving the equipment because the picket was
removed as soon as the, tractors were returned to the
Leaseway facility . The final requirement has been discussed
herein before and will not be repeated here.
The result is that, if Ward became embroiled in the
dispute between Leaseway and Respondent , it became so
enmeshed by reason of its business arrangement, and
practice thereunder, with Leaseway . Ward had only itself
and its lease arrangement to blame for whatever embarrass-
ment it suffered in'the labor dispute in which it was not a
primary disputant . This lease and the practice thereunder
created a situation akin to estoppel so far as Ward was
concerned . This is even a stronger case for dismissal than
United ; Steelworkers of - America ,. AFL-CIO (Auburndale
Freezer -Corp.). 177 NLRB"No: 108, reversed 434 F .2d 1219
(C.A. 5), December 3,1970. - , 11 I
Accordingly I must, and hereby do, find , that Respon-
dent's picketing at Ward's entrances was primary picketing
and, in addition, was conducted in accord with all the rules
of common.situs picketing and, therefore, was no violation
of Section 8(bX4Xi)(iiXB) of the Act.
CONCLUSIONS OF LAW
1. Local 294, International Brotherhood of ' Teamsters,
Chauffeurs, Warehousemen and Helpers of America,,is a
labor organization within the meaning of Section 2(5) of the
Act.
2. Leaseway of Eastern New York, Inc., and Montgom-
ery Ward & Co., Inc., are employers engaged in commerce
within the meaning of Section=2(6) and (7),of the Act.
3. Respondent has not engaged in any of the unfair
labor practices alleged in the complaint.
RECOMMENDED ORDER
Accordingly I hereby order this case dismissed in toto.