Local Freight Drivers Local 208

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 821 (N.L.R.B. 1975)

LOCAL FREIGHT DRIVERS LOCAL 208
Local Freight Drivers Local No. 208 , International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America ; and Line Drivers Lo-
cal No. 224, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and De Anza Delivery System, Inc.
Local Freight Drivers Local No. 208 , International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Borrego Freight
Lines, Inc.) and Tony Woods . Cases 21-CB-5055
and 21-CB-5087
July 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY , AND PENELLO
On February 11, 1975, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and the Charging Parties filed exceptions and sup-
porting briefs, and the Respondents filed a brief in
support of the Administrative Law Judge's 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge and
to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
i We have carefully considered our dissenting colleague 's contrary con-
clusions. The cases he relies on are distinguishable from the instant case In
both Smith Steel Workers, Directly Affiliated Labor Union /9806 (A. O.
Smith Corporation), 174 NLRB 235 (1969 ), and Local 445, International
Union of Electrical, Radio and Machine Workers, AFL-CIO (Sperry Systems
Management Division , Sperry Rand Corporation), 202 NLRB 183 (1973). the
respondent unions sought to compel employers to recognize and deal with
the unions concerning certain of their own nonunit employees . Here, as the
Administrative Law Judge finds , Respondent Unions have sought by means
of arbitration of a contract with Borrego to bring De Anza 's employees
under the Borrego contract , but have made no threats nor brought any
pressure against De Anza for that purpose . As we have found that Borrego
and De Anza are separate employers , we are at a loss to understand how the
arbitration award against Borrego can be deemed to restrain or coerce De
Anza , much less its employees.
821
MEMBER KENNEDY, dissenting:
Contrary to the majority, I would not dismiss the
complaint in this case. I find merit in the complaint's
allegations that Respondents Teamsters Local 208
and Local 224 violated Section 8(b)(3) of the Act by
filing a grievance against Borrego Freight Lines, Inc.,
by which Respondent Local 208 and Respondent Lo-
cal 224 sought to represent the employees of a sepa-
rate employer, De Anza Delivery System, Inc., under
Respondent Local 208's collective-bargaining agree-
ment with Borrego, Inc., and by threatening to file
further grievances and to picket Borrego to enforce
the resultant arbitration award in Respondents' fa-
vor. Furthermore, in my view, the evidence also es-
tablishes that Respondents by this conduct violated
Section 8(b)(1)(A) and (2) of the Act.'
Borrego Freight Lines is a party to the Teamsters
National Master Freight Agreement. The drivers at
Borrego's Montebello terminal are represented by
Respondent Local 208. De Anza Delivery System,
Inc., is not a party to any collective-bargaining agree-
ment, and its employees are unrepresented. The Ad-
ministrative Law Judge found, and the majority here
agrees , that, despite some common ownership of.
Borrego and De Anza, Borrego and De Anza are in
fact and in law separate single employers under the
Act.
Respondent Local 208, however, being of a differ-
ent opinion as to the individuality of the two employ-
ers, filed a grievance against Borrego under the Na-
tional Master Freight Agreement by which Local 208
sought to f.iclude the De Anza employees under the
National Master Freight Agreement. Respondent
Local 224 was present and participated in the griev-
ance hearings. Conveniently, De Anza Delivery was
never notified of, nor participated in, the grievance
proceedings. After several hearings, ultimately the
Joint Western Committee ruled on August 13, 1974,
that De Anza was in fact a party to the National
Master Freight Agreement and its supplements. A
Local 208 shop steward told President Woods of
Borrego , 2 or 3 days later, that if Borrego was not
going to put the De Anza employees into the Team-
sters Union that the Teamsters Union would have to
file another grievance on the "subterfuge." A week
later another Respondent Local 208 shop steward
told Woods that if Woods adhered to his position
that the grievance decision was against De Anza and
2 The collective-bargaining agreement between Respondent Local 208
and Borrego is the Teamsters National Freight Agreement . That agreement,
which the Respondents herein have attempted to impose upon De Anza
Delivery and De Anza 's unrepresented employees , contains a union -security
clause . Since neither Respondent Union at any time represented the em-
ployees of De Anza Delivery upon either a Board certification nor upon a
showing of majority support , the attempt to impose a union -security clause
upon De Anza 's employees is of course violative of Sec. 8(b)(1)(A) and
8(b)(2) of the Act
219 NLRB No. 150
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not against Borrego and that Borrego could do noth-
ing about De Anza employees Respondent Local 208
would "use a hit-and-run picketing action."
The Administrative Law Judge, referring to the de-
sirability of arbitration as a means of settling indus-
trial disputes as explicated by the United States Su-
preme Court in Carey v. Westinghouse Electric Corp.,
375 U.S. 261 (1964), held that the instant case was
distinguishable from the Board's decision in A. O.
Smith Corporation, 174 NLRB 235 (1969).; The basis
for that distinction was that here, unlike A. O. Smith,
supra, there was no defiance by Respondent Locals
of the "Board's superior authority." In other words,
according to the Administrative Law Judge, since the
Board had not previously determined that Borrego
Freight Lines and De Anza Delivery were in fact
separate employers Respondent Locals were free to
pursue whatever contractual, economic, and physi-
cally coercive means were available to them within
their heart's desire in order to force Borrego to bar-
gain on behalf of De Anza's employees. Such reason-
ing is farfetched.
In my view, this case is a fortiori to A. O. Smith
Corporation, supra, and to the recent decision of the
court of appeals in Sperry Systems Management Divi-
sion, Sperry Rand Corporation v. N.L.R.B., 492 F.2d
63 (C.A. 2, 1974), cert. denied 419 U.S. 831 (1974). In
the Sperry Rand case, the court held that the union
violated Section 8(b)(3) of the Act by successfully
prosecuting a grievance resulting in an arbitration
award in effect granting the union in that case, which
represented employees of Sperry-Rand in New York,
representation rights of certain other employees of
Sperry-Rand employed at a plant in Vallejo, Califor-
nia, and by the union's subsequent efforts to enforce
that award although those efforts were confined to
threats to file further grievances. The court there held
at 69:
[R]egardless of the Union's motive in seeking
enforcement of the arbitration award, it commit-
ted an unfair labor practice because the subject
of the wages and working conditions of the Val-
lejo employees was not a permissible subject of
bargaining in the New York City unit.. . .
Generally, an employer commits the unfair la-
bor practices of interfering with employees' §7
rights and supporting a union in violation of
§8(a)(1) and 8(a)(2) when it imposes on employ-
ees of one unit the contract and bargaining
agent of another unit. See, e.g., Sheraton-Kauai
Corp. v. N.L.R.B., 429 F.2d 1352 (9th Cir. 1970);
Welch Scientific Co. v. N.L.R.B., 340 F.2d 199
(2d Cir. 1965).
The only distinction between the cases of A. O.
Smith and Sperry Rand, supra, is that in A. O. Smith
the Board had rendered a unit clarification decision
finding that the employees sought by the union were
not part of the unit, and in Sperry Rand the union
had lost an election in the Vallejo plant. It is clear
that the employees of separate employers, absent the
employer's participation in a multiemployer associa-
tion unit, constitute separate and distinct units of
employees.4 Such clear legal separation of the two
units of employees in this case dictates the conclu-
sion that Respondent Local 208 violated Section
8(b)(3) of the Act by pursuing a grievance to arbitra-
tion award and thereafter threatening further griev-
ance actions and economic duress on Borrego Freight
Lines, while Borrego and Respondent Local 208 were
parties to a complete and binding collective-bargain-
ing agreement covering the only unit in which Re-
spondent Local 208 held majority representative sta-
tus. I cannot imagine other behavior which could be
more disruptive of a stable and established collec-
tive-bargaining relationship than for a union to en-
gage in strike action and other harassing tactics
against an employer with whom it has that collective-
bargaining relationship in order to force that employ-
er to acquire in some manner for that union the right
to represent employees of another independent em-
ployer.
Therefore, inasmuch as Respondent Locals have
also attempted to force De Anza to enter into a col-
lective-bargaining agreement with Respondents at a
time when there has been no showing of majority
support for either of Respondents, and since that
agreement contains a union-security clause, I would
also find that Respondent Locals 208 and 224 have
violated Section 8(b)(1)(A) and 8(b)(2) of the Act.
3 Carey, of course , was a case where the union and the employer were in
a collective-bargaining relationship with each other Respondents here have
no such relationship with De Anza.
Moveable Partitions, Inc, 175 NLRB 915 ( 1969) See also International
Photographers of the Motion Picture Industries, Local 659 of the International
Alliance of Theatrical Stage Employees and Moving Picture Machine Opera-
tors of the United States and Canada (MPO-TV of California, Inc, Y A
Productions, Inc.), 197 NLRB 1187 (1972), enfd 477 F.2d 450 (C A.D.C,
1973), cert . denied 414 U.S. 1157 ( 1974).
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS , Administrative Law Judge: This
case was heard before me in Los Angeles, California, on
November 20, 21, and 26, 1974. The charge in Case 20-
CB-5055 was filed on August 15, 1974, by DeAnza Deliv-
ery System, Inc., herein called DeAnza, alleging that Local
Freight Drivers Local No. 208, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
LOCAL FREIGHT DRIVERS LOCAL 208 823
America, herein called Respondent Local 208, and Line
Drivers Local No. 224, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Respondent Local 224, and herein
collectively called Respondents, engaged in unfair labor
practices in violation of Section 8(b)(1)(A) and (2) of the
National Labor Relations Act, herein called the Act. The
charge in Case 21-CB-5087 was filed on September 20,
1974, by Tony Woods, alleging that Respondent Local 208
engaged in unfair labor practices in violation of Section
8(b)(3) of the Act. The consolidated complaint herein is-
sued on October 4, 1974, alleging that Respondents have
engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act; and that Respondent
Local 208 has engaged in unfair labor practices within the
meaning of Section 8(b)(3) of the Act. Posttrial briefs were
filed by all the parties.
The basic issues herein are (1) whether Respondent Lo-
cal 208 restrained and coerced DeAnza employees and
caused or attempted to cause DeAnza to discriminate
against said employees in violation of Section 8(a)(3) of the
Act by filing and processing a grievance against Borrego to
force DeAnza to apply to its employees Respondent's col-
lective-bargaining agreement with Borrego which contains
a union-security clause ; (2) whether Respondent Local 224
violated Section 8(b)(1)(A) and (2) by participating in the
prosecution of said grievance ; (3) whether Respondent Lo-
cal 208 violated Section 8(b)(3) of the Act by filing and
processing said grievance and by threatening to picket Bor-
rego if DeAnza employees were not covered under the Bor-
rego collective-bargaining agreement; and (4) whether the
proceedings herein should be deferred to arbitration under
the Board's Collyer policy)
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs, I make
the following:
annually enjoys gross sales in excess of $500 ,000 and annu-
ally purchases goods and products valued in excess of
$50,000 directly from suppliers located outside the State of
California . It also annually sells and ships goods and prod-
ucts valued in excess of $50,000 directly to customers out-
side the State of California.
I find that at all times material herein , DeAnza , Borrego,
and Sears each is , and has been, an employer within the
meaning of Section 2 (2) of the Act, engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATIONS
The complaint alleges, the answer admits, and I find that
at all times material herein Respondent Local 208 and Re-
spondent Local 224 each is, and has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events and Introduction
Borrego is a party to the Teamsters National Master
Freight Agreement. The drivers at Borrego's Montebello
terminal are represented by Respondent Local 208.2 De-
Anza is not a party to any collective-bargaining agreement,
and its employees are unrepresented?
On August 10, 1973, Respondent Local 208 filed a griev-
ance alleging a violation of the National Master Freight
Agreement. Although the grievance itself does not specifi-
cally state the relief sought, the ensuing grievance proceed-
ings make it clear, and it is undisputed, that Respondent
Local 208 was seeking thereby to have DeAnza employees
covered under the National Master Freight Agreement.
The pertinent section of the agreement reads:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
DeAnza Delivery System, Inc., herein called DeAnza, is
a California corporation engaged in the transportation of
commercial freight with its principal office and facility at
San Jose, California. In the normal course and conduct of
said business operations, DeAnza annually performs ser-
vices valued in excess of $50,000 for Sears, Roebuck &
Company.
Borrego Freight Lines, Inc., herein called Borrego, is a
California corporation engaged in the transportation of
commercial freight with facilities at Montebello, California
and Vista, California. In the normal course and conduct of
said operations, Borrego annually performs services valued
in excess of $50,000 for Sears , Roebuck & Company.
Sears , Roebuck & Company, herein called Sears, is en-
gaged in the retail sale of merchandise through its mail-
order operation and through retail stores located in Cali-
fornia and various other States of the United States. It
1 Collyer Insulated Wire, 192 NLRB 837 (1971)
ARTICLE 2, Section 3-Non-Covered Units
This Agreement shall not be applicable to those opera-
tions of the Employer where the employees are cov-
ered by a collective bargaining agreement with a
Union not signatory to this Agreement, or to those
employees who have not designated a signatory Union
as their collective bargaining agent.
When a majority of the eligible employees performing
work covered by an Agreement designated by the Na-
tional Negotiating Committee to be Supplemental to
the National Master Freight Agreement (to which
their Employer is a prior signator in the case of desig-
nated office and garage supplements), execute a card
authorizing a signatory Local Union to represent them
2 The office and dock employees at the Montebello terminal are repre-
sented by Teamsters Local 357 and the drivers at Borrego's Vista terminal
are represented by Teamsters Local 542
7 Chauffeurs, Teamsters and Helpers Local 150, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
was certified by the Board as the representative of employees at DeAnza's
Sacramento terminal on September 18. 1973 On October 16, 1974, Local
150 disclaimed interest in representing these employees and its certification
was revoked on October 18, 1974
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as their collective bargaining agent at the terminal lo-
cation, then, such employees shall automatically be
covered by this Agreement and the applicable Supple-
mental Agreements. In such cases the parties may by
mutual agreement negotiate wages and conditions,
subject to Conference Joint Area Committee approv-
al.
ARTICLE 3-Recognition, Union Shop and Check-Off;
Section 1-Recognition
(a) The Employer recognizes and acknowledges that
the National Union Committee and Local Unions af-
filiated with the International Brotherhood of Team-
sters are the exclusive represenative of all employees
in the classifications of work covered by this Master
Agreement, and Supplements thereto for the purpose
of collective bargaining as provided by the National
Labor Relations Act.
Subject to Article 2, Section 3 (Non-Covered Units);
this provision shall apply to all present and subse-
quently acquired operations and terminals of the Em-
ployer. This provision shall not apply to wholly-owned
and wholly independently operated subsidiaries which
are not under contract with local IBT unions . "Wholly
independently operated" means, among other things,
that there shall be no interchange of freight, equip-
ment or personnel , or common use, in whole or in
part, of equipment, terminals, property, personnel, or
rights.
The first grievance hearing, held on September 26, 1973,
before the Southern California Joint State Committee,4 re-
sulted in a deadlock. At the next hearing, held on Novem-
ber 8, 1973, before the Joint Western Committee,5 no deci-
sion was reached. At a further hearing, on August 13, 1974,
before the Joint Western Committee, the Committee ruled
that "under Article 2, Section 3 and Article 3, Section (a) of
the National Master Freight Agreement, DeAnza is a party
to that Agreement and its supplements." " Respondent Local
224 was present and participated in the hearings. De Anza
was never notified of, nor participated in, the grievance
proceedings. According to Woods' undenied testimony, 2
or 3 days after the Committee rendered its decision, Bob
Baker, a Borrego employee and shop steward for Respon-
dent 208 asked Woods when he was going to put "these
people" in the Union. Woods replied that he could not do
anything because they were not Borrego employees. About
that time, Art Warner, also a Borrego employee and Local
208 shop steward, walked up and said, "Well, I guess we
are going to have to file another grievance on the subter-
fuge."
Also undenied is Woods' testimony that a week or two
after the Committee's ruling, Warner asked Woods what he
4 The National Master Freight Agreement provides that disputes which
cannot be settled between the employer and the local are referred to this
Committee.
s If the Joint State Committee deadlocks , the dispute is referred to the
Joint Western Committee.
was going to do. Woods said he didn't know, that the griev-
ance was filed against Borrego but the decision was against
DeAnza and there was nothing he could do. Warner said
this proves they are the same company. Woods said he
would consult his attorney and follow his advice. Woods
replied, "Due to Bainbridge's bullheadedness he can drag
us all down, both DeAnza and Borrego." Warner then in-
quired if Woods had seen the unfair labor practice charge
filed by Bainbridge. Woods replied he had. Warner said,
"He should really drop that because it can do nothing but
hurt us." Warner further said that the Borrego employees
were aware that this could be damaging since, if a picket
was put up against Sears, Sears would probably throw
them out and everyone would be without jobs; however,
since they had gone this far, the employees wanted to fol-
low through to the conclusion. Warner further said "that if
the work was changed that-due to contractual provi-
sions-that the men could follow the work." Woods replied
that DeAnza did not acquire its Sears work from any single
carrier , that it might not go back to any single carrier and
that the work could possibly be so spread out they would
never be able to identify where it went. Woods asked what
happens now. Warner replied, "There is all types of things
that could happen. They can use a hit-and-run picketing
action. They can use an organizing picket."
Basic to a determination of the issues herein is whether
Respondents were seeking goals permissible under the Act.
In this regard, it is well established that a company which
has not agreed to be bound by the collective-bargaining
agreement of another company may be bound by the con-
tract if it is an alter ego of the signatory company or if it
constitutes a single employer with that company. Peter
Kiewit Sons' Co. and South Prairie Construction Co., 206
NLRB 562 (1973). There is no contention herein that De-
Anza is the alter ego of Borrego. Thus, the threshold issue
is whether DeAnza and Borrego constitute a single em-
ployer. General Counsel and Charging Parties contend that
they are separate employers. Respondents contend that
they are a single employer. The evidence is undisputed.
B. The Single Employer Issue
1. The formation of DeAnza and a description of the
business of DeAnza and Borrego
Borrego is engaged in transporting general commodities
as a contract carrier and in transporting produce, both as a
contract carrier and for its own account, in the Los Ange-
les Basin and San Diego County areas. Gene Bainbridge
operated Borrego as its sole proprietor from 1950 to July 1,
1969, when Borrego was incorporated. At the time of in-
corporation, Bainbridge was president and owner of 95
percent of the outstanding stock. Jack Nichols owned the
remaining 5 percent of stock and was vice president and
secretary- treasurer of the -corporation. At that time, Ni-
chols assumed the active management of the day-to-day
operations of Borrego and Bainbridge limited his role to
reviewing operating statements and bearing the responsi-
bility for major financial decisions and the hiring and fir-
ing of terminal managers . Labor relations policies were for-
LOCAL FREIGHT DRIVERS LOCAL 208
mulated 6 and implemented by Nichols and the terminal
manager.
In early 1970 Sears ' traffic manager and Bainbridge had
some discussions relative to the possibility of Sears initiat-
ing a home-delivery service in Sacramento and Fresno. In
June 1970, DeAnza was formed with Bainbridge as presi-
dent and sole stockholder, his wife as vice president, and
Mary Tuck 7 as treasurer. Subsequently, Tony Woods be-
came vice president and purchased 10 percent of the stock.
On August 1, 1970, DeAnza began doing business engaged
exclusively in local home delivery for Sears in Fresno and
Sacramento . The linehauling to these points from Sears'
Los Angeles warehouse was done by Sears or other car-
riers. This arrangement proved unsatisfactory and in late
August 1970 DeAnza took over the linehauling incident to
its home deliveries. To support the linehauling operation,
Sears gave DeAnza additional work, mostly backhauling,
some of which involved pickups from commercial ac-
counts, but DeAnza's main function continued to be home
delivery
Thereafter, DeAnza expanded its operations throughout
the State of California and opened other terminals. All of
DeAnza's local pickups and deliveries have always been
done by local subhaulers and all of its linehauling by line
subhaulers . In Bakersfield , Santa Barbara , Santa Maria,
Los Angeles , and San Diego, DeAnza uses one subhauler
to perform most of its local pickup and delivery work in
the particular area . In these areas , the transfer of freight
between local subhauler and line subhauler is done at the
local subhauler's terminal by the local subhauler's employ-
ees. In areas where DeAnza has terminals , the transfer of
freight between local subhaulers and line subhaulers is
done by dock workers employed by DeAnza.
In 1972, Woods purchased 10 percent of Borrego's stock
from Bainbridge. On July 1, 1973, Bainbridge repurchased
the 10 percent of DeAnza's stock owned by Woods and
sold Woods an additional 40 percent of Borrego's stock.
The remaining 50 percent of the Borrego stock was pledged
in security for a loan , so Bainbridge gave Woods an option
to purchase I to 10 percent of his remaining Borrego stock
when it was released from pledge . At the same time, it was
agreed that Woods would become president and general
manager of Borrego on January 1, 1974. Woods continued
in DeAnza's employ through December 31, 1973, and did
not participate in the management of Borrego . Since Janu-
ary 1, 1974, the officers of Borrego have been Woods as
president, Bainbridge as vice president, and Mary Tuck as
secretary-treasurer ; and the officers of DeAnza have been
Bainbridge as president, Mrs. Bainbridge as vice president,
and Mary Tuck as secretary-treasurer.
2. The operations of DeAnza and Borrego; the
relationship between the two companies
Borrego transports general commodities and produce
principally for commercial accounts. DeAnza transports
goods mostly for home deliveries. Borrego transports
freight in the Los Angeles Basin and in San Diego County.
6 To the extent not covered by the National Master Freight Agreement.
7 Mary Tuck is employed by Borrego as bookkeeper . She performs no
work for DeAnza and is not on its payroll.
825
DeAnza transports freight throughout the State. Borrego
has two terminals-one in Vista and one in Montebello.
DeAnza has terminals in San Jose, Fresno, Redding, and
Sacramento. No DeAnza terminal is closer to a Borrego
terminal than 250 miles. Bainbridge owns 100 percent of
DeAnza's stock and 50 percent of Borrego's stock. Woods
owns 50 percent of Borrego's stock. Bainbridge is president
of DeAnza and vice president of Borrego; Woods is presi-
dent of Borrego;8 Bainbridge's wife is vice president of De-
Anza; Mary Tuck is secretary-treasurer of both companies
and is employed as bookkeeper and supervisor of clericals
(Vista terminal) at Borrego. Tuck is not on DeAnza's pay-
roll and Bainbridge is not on Borrego's payroll. DeAnza
and Borrego operate under separate permits from the Pub-
lic Utilities Commission. Home deliveries to retail consum-
ers comprise more than half of DeAnza's business. Home
deliveries comprise only 1 or 2 percent of Borrego's busi-
ness.
Borrego's general commodities business is basically
handled out of the Montebello terminal. Borrego employ
at that terminal 15 heavy-duty drivers, six dock workers,
three office clericals who prepare freight bills, rating and
billing, and OS & D 9 work and two supervisors-Bill Wil-
liams and Ed Wines, who are both dispatchers. The basic
business handled out of Borrego's Vista terminal is pro-
duce. Borrego employs seven or eight heavy-duty drivers at
Vista; a terminal manager, Donald Woods; two office cler-
icals and a bookkeeper who perform the accounting for the
entire company. These employees perform no accounting
work for DeAnza.
All of DeAnza's bookkeeping is performed by its book-
keeper John Reynolds, at its San Jose terminal. However,
some of DeAnza's traffic paperwork is prepared by Borre-
go. Thus, Borrego does rating and billing t services for all
DeAnza freight that originates in the Los Angeles area and
for a portion of DeAnza traffic inbound to Los Angeles.
DeAnza compensates Borrego for this service." DeAnza
employs a terminal manager and two dock workers at its
Sacramento terminal; a terminal manager and two part-
time dock workers at its Redding terminal; a terminal
manager only at the Fresno terminal; and at the San Jose
terminal six dock workers and about eight clericals.
DeAnza employs no drivers. Its transportation of freight
is performed by subhaulers-about eight line subhaulers
8 These *positions were held at the time the grievance was resolved. At the
time the grievance was filed Woods was vice president of DeAnza and
Bainbridge was president of Borrego but, as set forth above , at the time
Woods purchased 40 percent of Borrego stock it was agreed that on January
1, 1974, they would assume the offices presently held.
9 OS & D is overages, shortages , and damages . Overages is freight over
without billing. Shortages is freight short for which there is a bill. Damage
could be either concealed or visible damage.
10 Rating and billing service involves taking a bill of lading , issued by the
shipper , assessing the freight .charges for transporting the shipment-and pre-
paring a revenue freight bill that accompanies the freight to its final destina-
tion.
11 In January 1974, when Woods assumed the management of Borrego,
DeAnza paid Borrego a flat monthly fee of $1 ,500 for rating and billing
services. Woods complained that this was insufficient and a different rate of
compensation was negotiated as of August 1, 1974, whereby DeAnza pays
66 percent of Borrego's rating and billing cost plus 5 percent. DeAnza's
portion of the cost is a higher percentage because home deliveries involve
numerous deliveries of small amounts whereas commercial work involves
fewer deliveries of larger amounts
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and about 30 local subhaulers. The local subhauler at the
point of origin picks up the merchandise from the shipper,
takes it to a local terminal, the line subhauler transports the
merchandise from the local terminal at the city of origin to
a local terminal in or near the destination city, and a local
subhauler transports the merchandise from the destination
terminal to the consignee. Dock workers do the loading
and unloading at terminals . In Bakersfield , Santa Barbara,
Santa Maria, Los Angeles, and San Diego, DeAnza uses
one subhauler in each city to perform most of its local
pickups and deliveries in the particular area . In these areas,
the line subhaulers deliver to terminals operated by the
principal local subhauler. Borrego is the local subhauler for
Los Angeles 12 and San Diego.13 The only use that De
Anza makes of Borrego 's Montebello terminal is that its
line subhauler picks up trailers from the terminal. There
are no DeAnza employees involved, only the subhauler's
driver and helper on the truck.
Both DeAnza and Borrego lease equipment from Anza
Enterprises , Inc.14 Prior to 1973, Borrego leased equipment
for its Vista facility. In March 1973, Borrego sold its equip-
ment to Anza under a sale and lease -back arrangement.
Since that time , Borrego has leased 80 or 90 percent of its
equipment from Anza Enterprises. The remainder is leased
from other leasing companies . Neither DeAnza nor Borre-
go own any equipment. They both lease equipment from
Anza Enterprises on a full maintenance lease on a pool
basis . That is , Anza Enterprises has a lease with Borrego
and a lease with DeAnza for each piece of equipment in
the pool.'5 Woods and Jim Adams, for DeAnza, negotiate
the division of the cost of the equipment based on relative
monthly use . Borrego's Montebello terminal is the only lo-
cation where DeAnza has a pooling arrangement with a
subhauler . DeAnza's arrangement with other subhaulers is
that DeAnza supplies the trailers which are leased from
Anza Enterprises.
DeAnza maintains a tie line telephone between its San
Jose offices and the terminals of its major subhaulers. The
line is used to communicate dispatch and OS & D informa-
tion. DeAnza regularly transmits dispatch instruction to its
line subhaulers through Borrego personnel . Thus, the Bor-
rego dispatcher in Montebello, by the tie line, informs the
DeAnza dispatcher in San Jose of DeAnza shipments
picked up by Borrego from DeAnza shippers in the Los
Angeles area. The DeAnza dispatcher then informs the
Borrego dispatcher as to what driver will handle what ship-
ment, the destination of the shipment and the order in
12 DeAnza occasionally uses other local subhaulers in the Los Angeles
area. DeAnza makes no home deliveries in the Los Angeles area . Its local
subhaulers there only make pickups of merchandise destined for areas out-
side of Los Angeles.
13 At the time DeAnza began operations , Borrego had a contract with
Sears which covered both commercial and home delivery traffic in San
Diego County Borrego did not perform the home delivery work but con-
tracted it to a subhauler , Cornell Cartage Its Sears home delivery contract
was for deliveries for Sears ' catalog division in San Diego . DeAnza's con-
tract is for delivery from all divisions of Sears Sears' only catalog ware-
house in California is in Los Angeles.
14 Bainbridge is the sole stockholder of Anza Enterprises which is engaged
in the business of leasing equpment- trucks, tractors, and trailers.
15 There are 55 trailers in the pool, 2 to 4 flats, and several dollys and
converter gears.
which the shipments are to leave the Borrego yard. Some-
times the Borrego dispatcher is requested to relay this dis-
patch information to DeAnza line subhaulers but often the
line subhauler will contact DeAnza directly to receive dis-
patch instructions.
DeAnza has a telephone in the Borrego Montebello ter-
minal which is a different number from the Borrego num-
ber. This telephone is answered by a Borrego employee.
DeAnza's principal local subhaulers, including Borrego,
act as agents for DeAnza in their respective geographical
areas. Thus, Borrego acts on behalf of DeAnza in relations
with customers . Borrego also solicits business for DeAnza.
However, this is generally incident to Borrego's solicitation
of business for its own account. That is, when Borrego
solicits new business in the Los Angeles and San Diego
areas , DeAnza services can be offered if the customer is
interested in freighting service outside of those areas."
There is no arrangement between Borrego and DeAnza
requiring Borrego to acquire business for or to assign any
portion of acquired business to DeAnza.
Borrego and DeAnza have separate labor relations poli-
cies and there is no common control of the formulation
and implementation of such policies. Thus, Borrego has
been party to collective-bargaining agreements with Team-
sters Unions for approximately 15 years. It has been party
to successive National Master Freight Agreements and
California Trucking Association has been its bargaining
representative in a nationwide multiemployer bargaining
unit since before DeAnza was formed. The wages, benefits,
and other basic terms and conditions of employment of
Borrego's employment are governed by the National Mas-
ter Freight Agreement and applicable supplements thereto.
This includes grounds for discipline and discharge, griev-
ance procedure , wages , and a health and welfare program.
To the extent not governed by said agreement, Woods for-
mulates Borrego's labor policy and actively controls the
day-to-day operations of Borrego. Thus, he determines the
type and amount of equipment to be utilized. He makes the
determination as to the type of business and the customers
Borrego will seek. He hires and fires Borrego's supervisors
and determines their function and duties. Employees are
hired by supervisors subject to Wood's approval. Supervi-
sors discuss anticipated disciplinary action with Woods.
He determines the size of the work force and employees are
discharged only with his prior approval. Bainbridge's only
participation in Borrego's affairs is to review monthly oper-
ating statements and to participate in financial decisions
such as the borrowing of money and cost ratios. Bain-
bridge and Woods discuss Borrego's financial picture
monthly, including a review and analysis of the monthly
operating statement. Specifically, Bainbridge is concerned
with the ratio of various cost items, including labor, to total
revenue. If a decision is made that a particular ratio should
be reduced, it is left to Woods to determine in what man-
16 For example . Borrego recently solicited a contract to handle freight
between Los Angeles and San Diego The prospective customer was inter-
ested only if Borrego could handle its freight to Northern California. This
northbound business was insufficient to warrant using a Borrego truck, so
the northern traffic was secured for DeAnza thereby giving Borrego the
local subhaul business for that northbound freight as well as the Los Ange-
les to San Diego traffic.
LOCAL FREIGHT DRIVERS LOCAL 208 827
ner he will attempt to effect the reduction.
DeAnza has never been a party to the National Master
Freight Agreement or any other collective-bargaining
agreement. The only employees of DeAnza that have ever
been represented by a labor organization are those at the
Sacramento terminal . Teamsters Local 150 was their certi-
fied representative for about a year until it disclaimed in-
terest and the certification was revoked in October 1974.
Control of the day-to-day operations of DeAnza resides in
Controller John Reynolds and Operations Manager Jim
Adams, both of whom are located at DeAnza's San Jose
facility. Reynolds supervises the clerical employees and is
in charge of accounting functions . Adams is in charge of
operations and the traffic department. The terminal man-
agers report to him and they supervise the dock workers.
Bainbridge retains responsibility for final decisions on ma-
jor financial matters and on labor relations matters. De-
Anza's labor relations policies are formulated by Reynolds
and Adams subject to Bainbridge's approval. Wage rates,
vacation benefits , and holiday benefits have been de-
termined in this fashion . DeAnza belongs to the California
Moving and Storage Association which formulates a
schedule of benefits . DeAnza grants benefits to its employ-
ees in line with such formulations .'? DeAnza has an estab-
lished grievance procedure whereby an employee's griev-
ance is first discussed with the immediate supervisor and is
ultimately resolved by Reynolds or Adams. It also has a
policy of conducting annual reviews and adjustments of
wages each July 1. Hiring and firing of dock workers is
done by the terminal manager.
There is no interchange of employees or supervisors 18
and no one on Borrego 's payroll participates in controlling
the day-to-day operations of DeAnza or its labor relations
policies . Similarly , no supervisor of DeAnza or anyone on
its payroll participates in controlling the day-to-day opera-
tions of Borrego or its labor relations policies.
DeAnza and Borrego maintain separate personnel re-
cords , separate bank accounts , separate payrolls , and file
separate income tax returns. Borrego's fiscal year runs
from July through June and its accounting periods are on a
calendar month basis. DeAnza utilizes a calendar fiscal
year and has 13-week quarterly accounting periods.
The local pickup and delivery work done by Borrego for
DeAnza amounts to only 14 percent of DeAnza's total rev-
enue for 1973 and 12 percent for the first 7 months of 1974;
and to 43.6 percent of Borrego 's gross revenue for that
17 The record is unclear as to whether this Association has benefit plans in
which its members participate or whether it merely sets forth guidelines
which it urges its members to follow.
18 There was some testimony adduced by General Counsel from Borrego
employees , located at the Montebello terminal , to establish that DeAnza
employee , John Forgy , at times supervised Borrego employees engaged in
loading functions . I credit Bainbridge 's testimony that Forgy was his assis-
tant from sometime in 1971 to January 1974. During that period, he was
responsible , on a troubleshooter basis , for security , accidents, and Occupa-
tional Safety and Health Act requirements . In the course of his duties, he
visited DeAnza terminals and the terminals of DeAnza's local subhaulers,
including Borrego 's Montebello terminal . His purpose in making such visits
was to investigate security , safety , and loading problems having to do with
OS & D. In July 1973, he became manager of DeAnza's Fresno and Sacra-
mento terminals and only visited other terminals when there were specific
problems . I find the evidence insufficient to establish that he functioned as
a supervisor of Borrego employees.
same overall period. Also, during this period DeAnza's
business with Borrego accounts for approximately 19 per-
cent (1974) to 22 percent (1973) of DeAnza's total cost for
subhaulers.
Finally, with two exceptions, none of the work done by
DeAnza was previously performed by Borrego. The excep-
tions are certain work performed for Sears in the Santa
Barbara and Santa Maria area. This was primarily com-
mercial deliveries and some home deliveries in Santa Barb-
ara and it involved both line hauling and local deliveries.
In the spring of 1970 the carrier used by Sears in that area
was shut down due to a strike and lockout situation. At
Sears' request Borrego took over this work. After 2 weeks,
Borrego ceased working in the Santa Maria area but con-
tinued in the Santa Barbara-Oxnard area until January
1971 when Sears requested that DeAnza handle the traffic
to that area.19 At that time this Santa Barbara business
may have comprised as much as 20 percent of DeAnza's
total business. It presently comprises only 3 to 5 percent of
DeAnza's business.20
In these circumstances , particularly the lack of inter-
change of employees, the separate supervision and the ab-
sence of common control of the labor relations policies and
the day-to-day operations of the two companies, I find that
Borrego and DeAnza are separate employers under the
Act.21 Milo Express, Inc., 212 NLRB 313 (1974); Wiley
Bros. Transit Mix, Inc., et. al., 211 NLRB 382 (1974); Peter
Kiewit Sons' Co., 206 NLRB 562 (1973); Gerace Construc-
tion, Inc., 193 NLRB 645 (1971).
3. The arbitration award
Respondents contend that the Board should honor the
arbitration award herein. I find this contention without
merit and conclude that the matter should not be deferred
to arbitration because (1) in view of my finding that Borre-
go and DeAnza are separate employers, the award is re-
pugnant to the Act and (2) DeAnza was not a party to the
proceedings.
4. The alleged violation of Section 8(b)(1)(A) and (2) of
the Act
The complaint alleges that by processing a grievance
against Borrego under the National Master Freight Agree-
ment and obtaining a ruling that DeAnza is a party to the
agreement, Respondents have, in violation of Section
8(b)(l)(A) and (2) attempted to compel DeAnza to recog-
nize the Respondents and their joint representatives as the
exclusive bargaining representative of DeAnza employees
and to apply to said employees the terms and conditions of
the National Master Freight Agreement, including a
union-security provision. It is well established that a union
violates Section 8(b)(1)(A) when it seeks and obtains recog-
nition as bargaining representatives of employees at a time
19 Borrego lost money on its Santa Barbara operations.
20 This decline results from an increase in DeAnza's total volume of busi=
ness rather than a decrease in the volume of business in the Santa Barbara
area
21 In view of this conclusion , I find it unnecessary to reach the accretion
issue.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when it does not represent an uncoerced majority of said
employees . It is also established that a union party to a
union-security agreement covering one group of employees
violates Section 8(bXl)(A) and (2) of the Act by extending
coverage of such agreement to a different group of employ-
ees when it does not represent a majority of said employ-
ees. Melbet Jewelry Co.,lnc., 180 NLRB 107 (1969); Shera-
ton-Kauai Corporation, 177 NLRB 25 (1969), enfd . 429 F.2d
1352 (C.A. 9, 1970); Super Markets General Corporation,
d/b/a Shop Rite, 170 NLRB 446 (1968); Sunset House, 167
NLRB 870 (1967), enfd. 415 F.2d 545 (C.A. 9, 1969).
This situation often arises in the context of the acquisi-
tion of a new facility by an employer signatory to a collec-
tive-bargaining agreement covering facilities in existence
prior to the new acquisition . Frequently, in these cases the
contract contains an "after-acquired" clause by which the
parties agree to extend coverage of the contract to facilities
acquired by the employer after the execution of the con-
tract . The cases in which the Board has been confronted by
these questions have involved facilities of a single employer
and the actual unlawful according of recognition and ex-
tension of the contract . Normally, the decision in those
instances hinges upon whether the after -acquired facility is
an accretion to the established unit . Such is not the situa-
tion herein . Here , we are concerned with employees of sep-
arate employers and the question as to whether the pursual
of contractual grievance procedures is sufficient to support
a finding of a violation of Section 8(b)(1)(A) and (2). There
appear to be no cases directly on point.
General Counsel and the Charging Parties argue that
Respondents have prosecuted the grievance herein with an
object of acquiring representational rights over DeAnza
employees and thereby unavoidably destroying the rights
of the DeAnza employees to decide for themselves whether
they wish such representation. They further contend that
this, without more , constitutes a violation of Section
8(b)(1)(A); and, since the agreement contains a union-se-
curity clause , constitutes a violation of Section 8(b)(2). In
support of this contention, they rely on Harold A. Boire,
Reg. Dir. v. International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America [Pilot Freight
Carriers], 479 F.2d 778 (C.A. 5, 1973). I find such reliance
misplaced.
Boire was proceeding under Section 10(j) of the Act
which provides , in the proper circumstances , for injunctive
relief pending Board determination as to alleged unfair la-
bor practices . The theory behind the 8(b)(1)(A) allegation
in that case was that the Teamsters violated the Act by
filing a grievance seeking to extend its collective-bargain-
ing agreement with the Employer, Pilot Freight Carriers,
Inc., to Pilot Freight's recently acquired facilities in Flori-
da and by striking Pilot systemwide to compel compliance
with a grievance award finding that the Florida facilities
were covered by the contract . That theory is significantly
different from the one herein in that the Union 's actions
were directed toward the employer of the employees it
sought to represent and that such action involved more
than the processing of a grievance and continued after the
Board's jurisdiction was invoked . Furthermore , the stan-
dards applied in a 10(j) proceeding are different from those
applied in a Board proceeding on the merits . The question
before the court in a 10(j) proceeding is whether the Re-
gional Director 's theory of a violation was substantial. In
Pilot Freight, the court's rationale was directed toward
showing that the charges were "substantial ." The court
specifically admonished that nothing in its decision was to
be construed as a prejudgment as to whether unfair labor
practices had in fact occurred and stated "we merely hold
that the defensive contentions of the Teamsters are not
conclusive enough to render the General Counsel's theory
insubstantial."
Respondents contend that a request or demand directed
toward Borrego cannot constitute restraint or coercion of
DeAnza employees. They further contend that the mere
processing of a grievance is not violative of the Act. In
support thereof, they rely on N.L.R.B. v. Drivers, Chauf-
feurs and Helpers Local Union 639 (Curtis Bros.), 362 U.S.
274 (1%0). In that case , the Supreme Court held that
peaceful picketing by a union which does not represent a
majority of the employees , to compel immediate recogni-
tion as the employees' exclusive bargaining agent, did not
constitute restraint or coercion of employees in violation of
Section 8(b)(1XA) of the Act. Respondents argue that at-
tempts to gain recognition by peaceful means of lesser
magnitude than picketing should similarly fall outside the
ambit of Section 8(b)(1)(A), that to hold otherwise would
result in the anomalous situation where recognition picket-
ing by a minority union would not be a violation of Section
8(b)(1)(A), but peaceful processing of a grievance to gain
the same end would be violative . I do not find the specific
holding in that case analogous, as Respondent appears to
be arguing, for that holding turned not so much on the
character of picketing as restraint of coercion but rather on
Congressional intent and the statutory scheme with regard
to peaceful recognitional and organizational picketing. See
International Ladies' Garment Workers' Union v. N.L.R.B.
[Bernhart-Altman], 366 U.S. 731 (1961). However, the
Court's rationale is pertinent in that it rejects a broad ap-
plication of 8(b)(1)(A) to all conduct which might have a
restraining or coercive effect upon employees and con-
cludes that Section 8 (b)(1)(A) must be read with due re-
gard to it being "only one of many interwoven sections in
a complex Act" and to the "manifest purpose of the Con-
gress to fashion a coherent national labor policy."
I have carefully considered the arguments advanced by
General Counsel and Charging Parties. However, I do not
agree that because of its unlawful representational object,
Respondent 's peaceful pursuit of its contractual grievance
procedure is violative of Section 8(b)(1)(A) and (2) of the
Act. It is well established that contractual provisions for
grievance and arbitration of disputes contribute signifi-
cantly to the statutory objective of promoting industrial
peace and stability by encouraging the practice and proce-
dure of collective bargaining . Carey v . Westinghouse Elec-
tric Corporation, 375 U.S. 261 (1963). Thus, resort to a con-
tractual grievance and arbitration procedure would
normally effectuate the purposes of the Act. However,
General Counsel and Charging Parties, in arguing that the
object of the grievance makes it unacceptable , seem to be
contending that a union which resorts to the contractual
grievance and arbitration proceeding in areas of Board ex-
pertise does so at its peril. I think the Supreme Court has
LOCAL FREIGHT DRIVERS LOCAL 208 829
rejected this contention in Carey v. Westinghouse Electric
Corporation, 375 U.S. 261 (1963), a proceeding to compel
arbitration . That case arose out of the Union 's charge that
the employer was assigning unit work to employees in a
unit represented by another union . The employer refused
to arbitrate on the ground that the controversy presented a
representation matter for the National Labor Relations
Board . The holding of the Court below that the matter was
within the exclusive jurisdiction of the Board was reversed
and the Court stated:
However the dispute be considered-whether one in-
volving work assignment or one concerning represen-
tation-we see no barrier to use of the arbitration pro-
cedure . If it is a work assignment dispute , arbitration
conveniently fills a gap and avoids the necessity of a
strike to bring the matter to the Board . If it is a repre-
sentation matter , resort to arbitration may have a per-
vasive , curative effect even though one union is not a
party.
By allowing the dispute to go to arbitration its frag-
mentation is avoided to a substantial extent ; and those
conciliatory measures which Congress deemed vital to
"industrial peace" (Textile Workers v . Lincoln Mills,
supra , at 455) and which may be dispositive of the
entire dispute , are encouraged . The superior authority
of the Board may be invoked at anytime . Meanwhile
the therapy of arbitration is brought to bear in a com-
plicated and troubled area.
That rationale seems applicable here . The aspects of the
relationship between Borrego and DeAnza which are read-
ily observable by the Borrego employees decidedly raise
the question as to whether DeAnza employees are properly
in the Borrego unit . Drivers who appear to be employees of
DeAnza operate out of the Borrego terminal . Borrego dis-
patchers give instructions to these employees . Bainbridge
continues to visit the Borrego terminal . These factors, and
others , refute any contention that Respondents ' concern
had no substantial basis . The most practical way to obtain
the pertinent factual information is through some sort of
hearing . Respondents' choice of the contractual grievance
procedure should not be proscribed.
The cases which have confronted the Board with the is-
sue of whether the filing of a grievance constitutes an un-
fair labor practice have been refusal-to-bargain cases
which had an added element-conduct in defiance of the
Board's superior authority . Smith Steel Workers, Directly
Affiliated Local Union 19806, AFL-CIO (A.O. Smith Corpo-
ration), 174 NLRB 235 (1969). Such is not the situation
here . There was no determination by the Board that an
extension of the contract was improper ,22 nor had the pro-
cesses of the Board been invoked prior to the Committee
decision herein .23 Similarly , the Warner conversation,
which occurred after the filing of the initial charge herein,
cannot be considered as constituting defiance of the
22 Local 150 had been certified at the Sacramento terminal . However,
Local 150 is a joint representative under the National Master Freight Agree-
ment and there is no Board determination that a broader unit might not also
be appropriate.
23 The initial charge herein was filed on August 15, 1974.
Board's authority. Warner, in direct response to Woods'
inquiry as to what the Union could do, said the Union
could use economic action. He did not directly threaten to
do so and notwithstanding the passage of several months,
the Union has engaged in no action to compel compliance
with the Committee decision.
Furthermore, Respondents have engaged in no conduct
directed toward DeAnza. The conduct directed toward
Borrego could have no impact on DeAnza employees be-
cause Borrego has no control over their hire, tenure or
terms of employment. The situation here is analogous to
those cases involving threats to, or picketing of, general
contractors in furtherance of a dispute with the subcon-
tractor. In those cases the Board made it clear that it would
not find a violation of Section 8(b)(1)(A) and (2) of the Act
when the pressure exerted by a union is directed not to the
employer of employees involved, but rather to another em-
ployer. Local Union No. 180, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO (B & K Drywall Sys-
tems, Inc.), 181 NLRB 94 (1970); Local No. 447, United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
AFL-CIO (Malbaff Landscape Construction), 172 NLRB
128 (1968).
I therefore find that by processing a grievance against
Borrego under the National Master Freight Agreement
and obtaining a ruling that DeAnza is a party to that
Agreement, Respondents have not violated Section
8(b)(1)(A) and (2) of the Act.24
5. The alleged 8(b)(3) violation
The complaint alleges that Respondent Local 208 violat-
ed Section 8 (b)(3) of the Act by processing the grievance
and by the alleged threats made by Warner. The Board has
held that a union violates Section 8(b)(3) when it utilizes its
contractual grievance procedure in pursuit of its demand
for an expanded inappropriate bargaining unit. Smith Steel
Workers, Directly Affiliated Local Union 19806, AFL-CIO
(A.O. Smith Corporation), 174 NLRB 235 (1969), enfd. 420
F.2d 1 (C.A. 7, 1969). I find that case distinguishable.
There the Board, in a unit clarification proceeding de-
termined that the disputed employees properly belonged in
another unit where another union was the certified bar-
gaining representative. The theory of the violation was that
the Union utilized the grievance procedure in pursuit of its
representational demand in a unit in which the Board had
found that another labor organization had recognition
rights. See Local 445, International Union of Electrical, Ra-
dio and Machine Workers, AFL-CIO (Sperry Rand Corpora-
tion), 202 NLRB 183 (1973). Here there was no Board de-
termination.
Accordingly, I find that by processing the grievance
herein, Respondent Local 208 did not violate Section
8(b)(3) of the Act. I further find, as indicated above, that
the Warner conversation did not constitute threats of pick-
eting and other economic sanctions against Borrego. I
therefore find that Respondent Local 208 has not violated
24 In view of this finding , I do not reach the question of the extent of
Respondent Local 224's participation in prosecuting the grievance.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(bX3) of the Act by threats of picketing and other Upon the foregoing findings of fact and conclusions of
economic sanctions to compel Borrego to bargain with it law and the entire record in this proceeding and pursuant
regarding the terms and conditions of employment of De- to Section 10(c) of the National Labor Relations Act as
Anza employees . amended , I hereby recommend the following:25
CONCLUSIONS OF LAW
1. DeAnza Delivery Systems, Inc. and Borrego Freight
Lines , Inc., each is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Local 208 and Respondent Local 224
each is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(b)(l)(A), (2), and (3) of the
Act.
ORDER
The complaint is dismissed in its entirety.
25 In the event no exceptions are filed as provided by Section 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.