Local Union No. 612, IBTCWH

National Labor Relations Board - Board Decisions

Dec 17, 1964

150 N.L.R.B. 514 (N.L.R.B. 1964)

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the work in dispute to teamsters who are its members rather than to
electricians who are represented by International Brotherhood of
Electrical Workers. Local 357.
Local Union No. 612, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America and
Deaton Truck Line, Inc. Case No. 10-CP-37. December 17,1964
DECISION AND ORDER
On July 6, 1964, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging Party filed ex-
ceptions to the Trial Examiner's Decision and briefs in support
thereof.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and 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 recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint].
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter is before Trial Examiner Joseph I. Nachman, on a complaint 1 pur-
suant to Section 10(b) of the National Labor Relations Act, as amended , herein
called the Act, alleging that since on or about January 12, 1963, Local Union No.
612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called Respondent or the Union, violated Section 8(b)
(7)(C) of the Act, by picketing for more than 30 days without, a representation
petition being on file and not being then certified as the representative of Deaton's
employees , the Birmingham , Alabama, terminal and offices of Deaton Truck Line,
Inc., herein called Deaton or Company, with an object of forcing or requiring
Deaton to recognize or bargain with the Union as the collective -bargaining repre-
sentative of Deaton 's employees , or to force or require said employees to accept or
select the Union as their collective-bargaining representative . Respondent, by
answer, admitted the picketing, the lack of a certification , and that the picketing
continued for more than 30 days without a representation petition being on file,
but denied that its picketing had any recognition or organizational object, and
averred that its picketing was solely to protest alleged unfair labor practices on the
part of Deaton.
On, March 25, 1964 , the parties entered into a stipulation submitting this case
for decision by a Trial Examiner to be designated by the Chief Trial Examiner,
upon a record consisting of the formal documents and the transcript of evidence
1 Issued February 12, 1964 ; based on a charge filed August 19, 1963.
150 NLRB No. 40.
LOCAL UNION NO. 612, IBTCWH 515
and exhibits in a proceeding under Section 10(l) of the Act, instituted against
Respondent in the United States District Court for the Northern District of
Alabama.2 Briefs submitted by the parties have been duly considered.
Upon the pleadings, stipulations, evidence, and the entire record in the case, con-
stituted as above set forth, I make the following:
FINDINGS OF FACT3
1. THE ALLEGED UNFAIR LABOR PRACTICE
A. The facts
1. Background
For a number of years Deaton recognized the Union as the collective-bargaining
representative of certain employees of the Company. The latest contract between
the parties was for a period from August 1, 1959,'to July 31, 1962, and thereafter
from year to year unless terminated by notice. That contract did not contain a
specific unit description, but did contain a section entitled "Recognition and Union
Security," which provided that "all Mechanics, Helpers, Drivers, Driver owners ...
must become members of Local Union No. 612 if their employment continues
beyond thirty (30) days from the date of their hiring." A further provision related
to the checkoff of union dues and initiation fees from the wages of all members
of the Union that authorized such deductions.
During this period Deaton had approximately 263 trucks in its fleet, of which it
owned 3 outright, and the balance it operated under lease agreements. Of the
leased trucks, 148 were owner-operated, and the remaining 112 were operated by
nonowner-drivers. The Company checked off dues from the wages of the afore-
mentioned owner-operators and nonowner-drivers.
In May 1962, Respondent gave Deaton notice terminating the then-existing con-
tract as of July 31, 1962, and of its desire to negotiate a new agreement, proposals
for which would be submitted in the near future. At the time there were pending
in the courts certain suits to which the Union and Deaton were parties, and which
involved the question whether the owner-operators of trucks in the Deaton fleet
were employees or independent contractors .4 In the contract negotiations which
followed, the Union submitted and insisted upon proposals which had the effect of
requiring Deaton to recognize that all the drivers were employees, as had been the
case in the contract expiring July 31, 1962. Deaton, on the other hand, insisted
that it would not bargain with respect to the drivers operating leased equipment
because they were not employees of the Company. Deaton did, however, express
its willingness to negotiate pending the outcome of the pending litigation, with the
understanding that the Company was not giving up its position that said drivers
were not its employees. Respondent thereupon (July 13, 1962), filed a charge
alleging a refusal to bargain by Deaton, and on August 24, 1962, a complaint
issued on that charge.5 In the meanwhile, on July 26, 1962, the parties entered
into a so-called "Truce Agreement" which provided that the then-current contract
would remain in effect until terminated by either party on 30-days notice.
On August 15, 1963, the Board issued its Decision and Order in Case No. 10-
CA-5055, which is reported at 143 NLRB 498. The Board there concluded that
the owner-drivers were not independent contractors, as found by the Trial Exam-
2 Phillips, etc v. Local Union No. 612, etc., Civil No. CA 64-64. An Injunction as prayed
was granted, but the decision is unreported.
8 No issue is presented as to commerce or labor organization. The complaint alleges,
the answer admits, and the parties have stipulated facts which adequately prove both
points. I find the facts to be as pleaded. Moreover, the Board has recently asserted
jurisdiction over Deaton in a case based on a charge filed by the Union See Deaton
Truck Line, Inc., 143 NLRB 498. The Board's Decision in that case is material to the
issues in this proceeding and will hereafter be more fully discussed
4 Two of these suits have court opinions . See Deaton Truck Line v. Local 612 , etc, 307
F. 2d 748 ( CA. 5), and Local 612, International Brotherhood of Teamsters Local Union
612, etc. v Deaton Truck Line , 51 LRRM 2552 (C A. 5).
5 This Case No. 10-CA-5055, heard by Trial Examiner von Rohr on October 30 and 31,
1962. His Decision issued February 4, 1963. The Trial Examiner concluded that the
owner-drivers were independent contractors, and that the multiple owner-drivers, were,
together with Deaton, the joint employers of the nonowner-drivers, and recommending
that Deaton be required to bargain with the Union as the representative of those drivers,
as well as of those employed directly by Deaton.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner, but were along with the nonowner -drivers, employees of Deaton . The Board
also concluded that the multiple owner-drivers , because they had the power to hire
and fire drivers of their trucks, were supervisors within the meaning on the Act,
and as the Union had insisted on bargaining in a unit which included such super-
visors, the unit was inappropriate . For this reason , the Board concluded Deaton's
refusal to bargain for such inappropriate unit was not a violation of Section
8(a) (5) and directed dismissal of the complaint ,6 in its entirety.?
2. The current facts
On December 6, 1962, Deaton gave the Union notice that it was terminating the
"Truce Agreement" as of January 5, 1963.8 Respondent thereupon began picketing
Deaton's Birmingham terminal with banners reading:
We are striking in protest of Deaton's unfair labor practices.
Teamsters Local 612.9
On January 18, 1963, and again on February 19, 1963, representatives of the
Union and of the Company met with a Federal conciliator. At these meetings the
Union again presented the contract proposals which it had urged at the contract
negotiations in July 1962. Deaton expressed its willingness to sign a contract with
the Union provided its terms were acceptable to Deaton. No agreement was
reached, and there has been no further meetings between the parties. The picketing
of Deaton which began in January 1963, as above set forth, continued until
February 17, 1964, when it was enjoined in the Section 10(l) proceeding based on
the charge herein.
As heretofore mentioned, the Board, on August 15, 1963, issued its Decision and
Order in Case No. 10-CA-5055. On August 19, 1963, the Union changed the
legend on its picket signs used at Deaton's terminal to read: "Deaton employees
on strike, Teamsters Local 612." The signs used in the ambulatory picketing
remained unchanged. Also on August 19, 1963, Deaton filed the charge upon
which the instant complaint is based.
6 The facts set forth in this section are based on the Board 's findings in 143 NLRB
498, of which I take official notice.
7 The Union filed with the Board two motions for reconsideration of the aforesaid
Decision, both of which were denied ; the first on December 16, 1963, and the second
on January 6, 1964. The case is now pending on petitions for review filed by Deaton and
the Union, respectively, in the United States Court of Appeals for the Fifth Circuit. The
matter has not yet been argued.
8 The collective-bargaining agreement which was scheduled to expire on July 31, 1962,
but which had been continued in effect by the "Truce Agreement," thus ceased to be effec-
tive as of January 5, 1963 On January 4, 1963, the Union filed a charge against Deaton
alleging violations of Section 8(a) (1), (3 ), and (5 ) of the Act. The basis for this
charge was that, since about November 16, the Company had (1) "locked out" about 57
employees by refusing to permit owner-operators and nonowner-drivers to operate in the
Company's fleet; and (2) attempted to bargain 'individually with many of the aforesaid
employees. The Regional Director dismissed this charge. On appeal to the General Coun-
sel, the Regional Director was sustained with respect to the 8(a) (5) aspects of the
charge in view of the Board's decision in Case No. 10-CA-5055, heretofore discussed, but
an 8(a) (3) complaint was authorized. Such complaint (Case No. 10-CA-5216), has been
issued and heard by Trial Examiner Maher, but his Decision has not yet issued
8 The picketing was not limited to Deaton's terminal. Roving pickets followed Deaton's
trucks to the premises of firms doing business with Deaton, and there picketed with ban-
ners stating that the Union was on strike against Deaton and that the picketing was
directed only at the latter. Handbills were also distributed which stated, inter ella, that
the Union had a dispute with Deaton because the latter had unilaterally terminated the
contract which had been in effect and refused to bargain in good faith for a renewal. All
instances of ambulatory picketing referred to in this record, occurred prior to March 1,
1963. There is no evidence that the ambulatory picketing caused any employee employed
at the premises so picketed, to engage in a work stoppage or to refuse to perform services.
There is evidence showing that employees of other employers did refuse to cross the picket
line at Deaton 's premises to perform services , and that by reason thereof , in some instances
Deaton was required to pick up freight at the terminals of other carriers.
LOCAL UNION NO. 612, IBTCWH 517
Analysis and Concluding Findings
The General Counsel and Deaton contend that the picketing involved had the
proscribed 8(b)(7) object of forcing or requiring Deaton to recognize and bargain
with the Union, pointing out that: (1) the last effective contract between Deaton
and the Union has expired; (2) most of the owner-operators and owner-drivers,
theretofore driving for Deaton, assuming they were "employees," are no longer
working for the Company, so that there is a reasonable doubt of majority status
imposing upon Deaton the legal obligation to bargain with the Union; and (3) there
is no evidence that the Union has in any way receded from its demand for bargain-
ing in a unit which, as above stated, the Board has found inappropriate. The
Union, on the other hand, contends that its picketing did not have "an object" of
compelling "recognition" (which, the Union argues, Deaton granted many years ago
and has never withdrawn), but was merely economic pressure designed to compel
Deaton to agree to contract terms which the Union sought. That this objective of
the Union necessarily implied Deaton's "recognition or bargaining" the Union
argues, is incidental.
I find and conclude that Respondent's picketing did not have an objective
proscribed by Section 8(b)(7) of the Act, and that the complaint, herein should, for
that reason, be dismissed. This conclusion, I believe is dictated by the Board's
decision in Building and Construction Trades Council, etc. (Jones and Jones, Inc.,
et al.), 146 NLRB 1086. In that case the Board, after considering the overall
purpose of the statutory provision here involved, stated that it was:
. convinced that the words "recognize or bargain" were not intended to be
read as encompassing two separate and unrelated terms. Rather, we believe
they were intended to proscribe picketing having as its target forcing or requir-
ing an employer's initial acceptance of the Union as the bargaining representa-
tive of his employees. When viewed in this posture, it is clear that . . . [the
employer] had recognized and extended bargaining rights to the Respondents
long before the disputed picketing commenced here and that such picketing
therefore was not designed to attain those statutory objectives. [Emphasis
supplied.] 10
In the instant case Deaton had extended recognition to, and had bargained with,
the Union for some years prior to the inception of the instant controversy. Even
after the last contract between the parties ceased to be effective on January 5, 1963,
Deaton twice met with the Union in bargaining negotiations, and offered to sign a
contract, provided the Union agreed to the terms proposed by Deaton.11 In this
posture, and in view of the Board's holding in Jones and Jones, supra, I can only
conclude that Respondent's picketing was simply economic pressure against Deaton
to compel the latter to agree to the Union's contract demands, and was not for the
object of obtaining "initial" recognition.
The General Counsel and Deaton contend that the Board's use of the phrase
"initial acceptance" in Jones and Jones, supra, must be read in context with the
facts in that case, and when so read should be considered applicable only when
there is a currently effective collective-bargaining agreement which grants recogni-
tion, but inapplicable where, as here, the Union had recognition under an expired
contract, and is picketing for a new one. I am unable to agree. This contention
completely loses sight of the fact that the congressional purpose behind Section
8(b)(7) was primarily to put a stop to so-called "blackmail" picketing, or organiz-
ing from the "top down." In view of the other interrelated provisions of the Act,
I find it inconceivable that Congress had the remotest intention of preventing a
union from picketing an employer to protest the latter's withdrawal of recognition,
or his refusal to bargain over the terms of a contract to replace one which had
expired. This, in my judgment, is the category in which the instant case falls.
Indeed, the employer here has not refused to recognize or bargain with the Union.
As heretofore pointed out, it has expressed its willingness to enter into a contract
with the Union, provided only that it is upon terms acceptable to Deaton. Thus
recognition was current. That the facts may fall within the literal language of
Section 8(b) (7) (C) is not enough; they must also fall within the, mischief which
10 See also Penello v. Warehouse Employees Union Local No. 570, 230 F. Supp. 892
(D C. Md.).
"These meetings were held on January 18 and February 19, 1963
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the statute was designed to prevent . As Judge Learned Hand said in a somewhat
similar context , "[statutes ] should be construed , not as theorems of Euclid, but
with some imagination of the purposes which lie behind them" (Lehigh Valley Coal
Co. v. Yensavage, 218 F. 2d 547, 553 (C.A. 2) ).
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Deaton is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent's picketing of Deaton since January 5, 1963, has not been vio-
lative of Section 8(b)(7)(C) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the . National Labor Relations Act, as amended, it is
recommended that the complaint herein be dismissed in its entirety.
Skaggs Drug Centers , Inc. d/b/a Payless Drug Stores [North-
towner Restaurant ] and Hotel & Restaurant Employees Local
Union No. 400, AFL-CIO . Case No. 19-CA-2764. December 18,
1964
DECISION AND ORDER
On August 14, 1964, Trial Examiner Ivar H. Peterson issued his
Decision in the above-entitled proceeding, finding that 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 attached Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and 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 recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, its offi-
cers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
150 NLRB No. 11.