Local 703, Teamsters

National Labor Relations Board - Board Decisions

Mar 5, 1971

188 N.L.R.B. 873 (N.L.R.B. 1971)

LOCAL 703, TEAMSTERS
Local 703, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(Dominick's Finer Foods, Inc.) and Gene C. Walker,
James O. Jordan, George Brinson . Case 13-CB-
2955
March 5, 1971
DECISION AND ORDER
BY MEMBERS FANNING , BROWN , AND JENKINS
On February 3, 1970, Trial Examiner William J.
Brown issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's De-
cision and a supporting brief. On May 27, 1970, the
Board ordered that the proceeding be remanded to
the Regional Director for Region 13 for further hear-
ing. On September 10, 1970, the Trial Examiner issued
his Supplemental Decision containing additional
findings on the Company's business and affirming the
findings of his original Decision. Thereafter, the Re-
spondent filed exceptions to the Supplemental Deci-
sion, and the General Counsel filed an answering
brief in support of the attached Trial Examiner's Sup-
plemental Decision.
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 Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, Supplemental Decision, the ex-
ceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Local 703, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Bedford Park, Illinois, its offi-
cers , agents , and representatives shall take the action
set forth in the Trial Examiner's Recommended Or-
der.'
873
' Cf. Association of Packers & Drivers Union (Guy's Foods, Inc.), 188 NLRB
No. 85.
2 In footnote 8 of the Trial Examiner 's Decision , substitute "20" for "10"
days
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner: This proceeding un-
der Section 10(b) of the National Labor Relations Act, as
amended, hereinafter referred to as the Act, came on to be
heard at Chicago, Illinois, on December 1, 1969.1 The un-
derlying charge of unfair labor practices was filed August
7 and duly served on the above-indicated Respondent,
hereinafter sometimes referred to as the Union. The com-
plaint herein was issued October 2 by the Regional Director
of Region 13, National Labor Relations Board; it alleged
the commission of unfair labor practices defined in Section
8(b)(1)(A) of the Act, on the part of the Union, acting
through its agent Dominick Senese . The Union's duly-filed
answer has admitted the agency of Senese , and denied the
commission of the unfair labor practices alleged. At the
hearing the parties appeared and participated as noted
above with full opportunity to present evidence and argu-
ment on the issues . Subsequent to the close of the hearing
briefs were received from the General Counsel and the Un-
ion and have been fully considered. On the basis of the
entire record herein and my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
The pleadings establish that Dominick's Finer Foods,
Inc., whose driver and warehouse employees at Dominick's
Bedford Park, Illinois warehouse are represented by the
Union, is a corporation organized and existing under and
by virtue of the laws of the State of Illinois. I take judicial
notice of the Board 's decision in an earlier case involving
the Company,2 in which it was found that the Company
operated a retail food business in the Chicago, Illinois area
with annual gross revenues in excess of $500,000 and with
annual direct interstate purchases in excess of $50,000. The
evidence in the instant case indicates that the Company's
operations have expanded and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act and that assertion of jurisdiction is warranted.
II THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish that the Union is a
labor organization within the purview of Section 2(5) of the
Act.
111. THE UNFAIR LABOR PRACTICES
The Complaint alleges that the Union refused to process
grievances of employees because they had filed a petition
and/or charges with the Board.3 The events herein material
appear to have had their genesis in the action of the Compa-
1 Dates hereinafter, unless otherwise specified , relate to the calendar year
1969.
2 Dominick's Finer Foods, Inc, 156 NLRB 14.
3 Allegations of unfair labor practices in interrogation of employees con-
Continued
188 NLRB No. 138
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny in May when it changed the equipment driven by the
Union members from single- axle to tandem type trucks.' At
the time of the change in equipment there was no change
made in the drivers' rate of $3.86, established in the con-
tract.5 Soon thereafter drivers Walker, James and David
Jordan, Brinson, and Burks complained to Senese about the
continuance of the old rate on the new equipment. Senese
promised to see what he could do with the Company. Some
time in June Walker again raised the matter with Senese
who again promised to talk to the Company about the mat-
ter.
On August 4, Walker prepared and sied a document
(G.C., Exhibit 2A andB) in the nature of a petition to the
Board's Regional Office complaining of failure on the part
of the Union and the Company to observe the provisions of
the bargaining agreement respecting holiday, overtime, and
back pay, discrimination, and refusal to upgrade the pay
scale to reflect the use of the tandem trucks. A copy was
mailed by registered mail to the Union. The document was
signed by all employees in the unit. On August 7 the charges
herein were filed by Walker, James Jordan, and Brinson.
On August 11 Senese came to the warehouse and talked
separately to a group of drivers and to the Company. The
evidence indicates that at that time Senese obtained a Com-
pany offer of a rate of $4.17 6 for the tandem driving condi-
tioned on the employees giving up their right to Saturday
doubletime and/or on their assent to a staggered work-
week. Senese apparently pointed out to the employees that
a new rate could not be established without some conces-
sion on the part of the Union and the employees. It is clear
from the credited testimony of James Jordan, Walker, and
Brinson , which is not contradicted by Senese, that in the
course of the discussions on that day Senese stated that if
employees listened to Walker (to whom he referred with an
opprobriously obscene epithet) he would issue them with-
drawal cards and let them represent themselves. The meet-
ing ended when Senese told the drivers that he would see
them in 2 weeks.
On September 2 Senese came to the warehouse and talked
with employees Burks , Brinson, and David and James Jor-
dan. At that time James Jordan asked Senese about the pay
rate issue and was told by Senese that the employees should
have told him about the petition to the Board and that he
could do nothing on the matter since it was in the
Government's hands. David Jordan testified that Senese
gave him substantially the same information. Brinson's tes-
timony is that Senese asked why the employees had gone to
the Board and stated that they should have talked to him
first. Burks testified that in September Senese told him that
the employees should have come to him before filing their
petition and that now there was nothing to do but have a
hearin . I credit these accounts.
While there is evidence that Senese had handled nu-
merous grievances successfully and to the advantage of unit
employees both before and after the August 11 contretemps,
the evidence abundantly establishes that on that date and
thereafter, particularly on September 2, he refused to en-
gage in any further handling of the tandem pay situation
and based his refusal on the fact that employees had filed
their petition with the Board. By this action on the part of
cerning the filing of such petition and/or charges were withdrawn by the
General Counsel at the hearing.
° There appears to have also been a diversification of products loaded
which created a minor annoyance to some of the drivers, their main concern,
however, appears to have been the change to the heavier and more difficult
to operate tandem trucks without any adlustme ,it in pay.
S The agreement had an expiration date of March 1970.
6 The Company's initial proposal on this occasion was $4 15
Senese the Union has engaged in unfair labor practices
within the scope of Section 8(bxl)(A) of the Act. Graham
Engineering, 164 NLRB 679; Selwyn Shoe Mfg. Corp., 172
NLRB No. 81.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in sec-
tion III, above, and there found to constitute unfair labor
practices defined in the Act, occurring in connection with
the operations of the Employer as set forth in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
such commerce and the free flow thereof.
V THE REMEDY
In view of the findings herein to the effect that the Re-
spondent Union has engaged in unfair labor practices af-
fecting commerce, it will be recommended that it be re-
quired to cease and desist therefrom and take such affirma-
tive action as appears necessary and appropriate to effectu-
ate the policies of the Act.
On the basis of the foregoing findings of fact and upon
the entire record in this case, f make the following:
CONCLUSIONS OF LAW
1. Dominick's Finer Foods, Inc., is an employer engaged
in commerce within the meaning of Sections 2(6) and (7) of
the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. By refusing to process employee grievances, in reprisal
for employees having invoked the assistance of the Board
respecting the subject matter of such grievances, the Union
hass()gaged in unfair labor practices defined in Section
8 )1 A) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclu-
sions of law, and upon the entire record in this case, it is
recommended that Respondent, its officers, agents, and
representatives, shall be required to:
1. Cease and desist from:
(a) Refusing to process grievances of employees in repris-
al for employees having consulted the Board in connection
with matters arising out of their employment with the Com-
pany.
(b) In any like or related manner restraining or coercing
employees of the Company in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Post at its regular place of business and regular meet-
ing place copies of the attached notice marked "Appen-
dix' Copies of said notice, on forms provided by the Re-
7 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 harem 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
LOCAL 703, TEAMSTERS
gional Director of the Board's Region 13, after being duly
signed by Respondent's official representative, shall be
posted immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered , defaced,
or covered by other material.
(b) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply with terms hereof.'
thereto shall be deemed waived for all purposes . 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 Rela-
tions 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."
8 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board, and in order to
effectuate the policies of the National Labor Relations Act,
as amended, we hereby notify our members that:
WE WILL NOT refuse to process Dominick's Finer
Foods, Inc., employee grievances in repnsal for em-
ployees having consulted the NLRB office about mat-
ters affecting their employement.
WE WILL NOT in any similar manner restrain or coerce
employees in the exercise of their rights under the Na-
tional Labor Relations Act, as amended.
LOCAL 703, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA
(DOMINICKS FINER FOODS, INC)
(Labor Organization)
FINDINGS OF FACT
I find , in accordance with the undenied and credited
testimony of Peter Koukos , vice president and director of
operations of the Company, that the Company is an Illinois
corporation and a wholly -owned subsidiary of Fisher Foods
of Cleveland . The Company operates a retail food chain in
Illinois with gross sales in the calendar year 1969 of $100
million ; in the same period it purchased , directly from
points outside Illinois , goods valued at about $5 million and
shipped to the Company 's Illinois facilities by air, rail, and
truck . The Company performs its own trucking operations,
using leased trucks, and Koukos deals with Respondent
concerning conditions of employment of its warehousemen
and truckdrivers who are , as appears from the uncontradict-
ed and credited testimony of Walker, employees of and paid
by the Company.
On the basis of the foregoing findings of fact , I make the
following:
CONCLUSIONS OF LAW
1. Dominick's Finer Foods is an emplo er engaged in
commerce within the purview of Section 2(6) and (7) of the
Act.
2. The unfair labor practices heretofore found to have
been engaged in by the Union affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Dated By
(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,
RECOMMENDED ORDER
On the basis of the foregoin findings of fact and conclu-
sions of law it is recommendedgthat Res ondent , its officers,
agents and representatives be requiredpto cease and desist
and take affirmative action as heretofore recommended in
this proceeding.
875
or covered by any other material.
Any questions concerning this notice or compliance with
its rovisions may be directed to the Board's Office, 881
U.S. Courthouse and Federal Office Building , 219 South
Dearborn Street , Chicago, Illinois 60604, Telephone 312-
353-7572.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
WILLIAM J. BROWN, Trial Examiner: This supplemental
proceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended, hereinafter referred to as the Act,
came on to be heard at Chicago, Illinois, on June 29, 1970,
pursuant to the Board's Order of May 27 remanding the
proceeding to the Trial Examiner for the purpose of taking
testimony concerning the Company's business as it relates
to Board jurisdiction. At the reopened hearing the parties
appeared and participated as noted above with full opportu-
nity to present evidence and argument on the issue referred
to in the Board's Order of remand. Subsequent to the close
of the hearing a brief was received from the Respondent
Union which leas been fully considered.
On the entire record of the remanded hearing herein, I
make the following: