Lucky Stores, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1979

243 N.L.R.B. 642 (N.L.R.B. 1979)

DL('CISIONS OF NATIONAL LABOR RELATIONS BOARD
Lucky Stores, Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 70. Case 32 CA 87 (formerly
20-CA 11512)
July 23, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBI RS JNKINS
ANI) PNLL.IIl.O
On November 14, 1978, Administrative Law Judge
Henry S. Sahm issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
an answering brief.
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' and findings of
the Administrative Law Judge only to the extent con-
sistent herewith.
The complaint alleged that Respondent violated
Section 8(a)(1) of the Act by refusing to allow lump-
ers to select work on its premises. The Administrative
Law Judge dismissed the complaint in its entirety,
finding the lumpers are not employees within the
meaning of the Act. For the reasons set forth below.
we disagree.
Respondent operates a warehouse and distribution
center in San Leandro, California, consisting of a
complex of buildings used for the receipt, storage,
and distribution of products intended for Respon-
dent's retail grocery stores located in northern Cali-
fornia. Trucks delivering merchandise have access to
the premises either at the front entrance on Merced
Street or the rear gate on Fairway Drive, depending
on the items to be delivered. Respondent's trucks,
used to deliver merchandise to the retail stores, also
use the front entrance.
Of Respondent's approximately 1200 employees,
about 350 are members of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 70, hereinafter called the
In exercising his discretion with respect to the scope of permissible rebut-
lal testimony, the Administrative Law Judge prevented the General Counsel
from introducing relevant evidence to rebut testimony first offered hy Re-
spondent in its case-in-chief as to the availability of Union Business Agent
Painter during the first part of May 1976. While this evidence should not
have been excluded its exclusion was not excepted to and does not affect the
results reached herein.
Union. 2 Furthermore, others involved in the events
described herein are also members of the Union.
These additional persons include those identified as
lumpers, who unloaded trucks coming onto Respon-
dent's premises and whose employee status is pres-
ently in dispute, and a number of striking drivers of
Associated Freight Lines who for a time established
an ambulatory picket line at Respondent's front en-
trance.
Prior to May 21, 1976, 3 Respondent granted the
lumpers unrestricted access to its receiving docks,
where they would arrange to unload merchandise
from the incoming trucks. According to the credited
evidence, which will be discussed in greater detail be-
low, in the early afternoon of that day an Associated
Freight truck entered Respondent's front entrance.
Several striking drivers of that employer who were
following the truck immediately established a picket
line where the Associated Freight truck had entered
Respondent's property. During the hour or hour and
a half' that the Associated Freight truck was present,
Respondent's drivers refused to drive Respondent's
trucks across the picket line to make deliveries to the
retail stores. During this time, representatives of Re-
spondent and the Union appeared at the front en-
trance and discussed the situation. At one point Re-
spondent's industrial relations manager, John Martin,
threatened to fire Respondent's drivers who refused
to cross the picket line. Following the simultaneous
departure of the Associated Freight truck and the
ambulatory pickets. Respondent's trucks exited the
premises. Thereafter, while still at the front gate,
Martin informed union business agent Edward Paint-
er that the lumpers no longer would be allowed to
remain on the property, but would have to enter and
leave the premises with the trucks delivering mer-
chandise. Martin immediately had other supervisors
informed of' his decision and they promptly carried
out his instructions to eject all lumpers from Respon-
dent's premises. There is no evidence that Respon-
dent took any action against its truckdrivers.
The General Counsel alleges that the lumpers who
worked on Respondent's premises are employees of
either Respondent or the truckdrivers and the truck-
ing companies, or both, and that their expulsion was
in retaliation for the establishment of the Associated
Freight picket line and was in violation of Section
8(a)( 1 ) of the Act. Furthermore, the General C('ounsel
contends that the references made by Respondent in
June in the presence of Respondent's employees re-
garding the picketing and the lumpers also violated
2 Although the record does not indica:e which unit or units of emplovees
are represented by the nion. reerence waits made at the hearing to certain
of' Respondent's employees who held the positions of' produce steward
truckers' steward. and chief shop stewa;rd
I3 nless otherwise indicaled, all dales are in 1976.
243 NLRB No. 125
642
Lt!('KY SI()ORKS. INC
Section 8(a)( ). Respondent. on the other hand, ar-
gues that the lumpers were not its employees. that the
decision to expel the lumpers had been made prior to
the picketing, and that the announcement of their ex-
pulsion was not related thereto. The Administrative
Law Judge, relying on the relationship between Re-
spondent and the lumpers, tound that the latter were
not employees, but independent contractors, and that
no violations of the National Labor Relations Act
regarding employees had occurred.
We find merit in the General Counsel's exceptions
to the Administrative Law Judge's Decision and, as
fully explained below, find that the lumpers are em-
ployees under Section 2(3) of the Act, and that their
expulsion by Respondent on May 21 and certain re-
lated statements made by Respondent in June were
violative of Section 8(a)( I) of the Act.
The Employee Status of L.umpers
As the crux of our disagreement with the Adminis-
trative Law Judge concerns the employee status of
the lumpers, this issue will be resolved prior to a fur-
ther discussion regarding the events surrounding their
expulsion from Respondent's property on May 21.
Section 2(3) of the Act clearly states that an "'em-
ployee' shall include any employee, and shall not he
limited to the employees of a particular employer, un-
less the Act explicitly states otherwise." In imple-
menting the statutory protections provided for em-
ployees who exercise their rights guaranteed in
Section 7 of the Act, this Board has consistently held
that an employer may violate Section 8(a) of the Act
not only with respect to actions taken affecting its
own employees, but also by actions affecting employ-
ees who do not stand in such an immediate employer-
employee relationship.4
The Administrative Law Judge, in examining the
question of the lumpers' employee status, correctly
phrased the issue as one to be determined by refer-
ence to the total factual content or, as restated, the
overall view. However, in analyzing the factors to be
considered, he relied exclusively on the relationship
between Respondent and the lumpers, thereby disre-
garding the additional involvement of the truckdriv-
ers and trucking companies in the performance of the
lumpers' work. As a result of this limited anals sis, the
Administrative Law Judge, upon finding that the
facts were insufficient to establish an employment re-
lationship between the lumpers and Respondent. con-
cluded that the lumpers were independent contractors
'A M Sleigerwald Co., 236 NLRB 1512 (1978). Holl Mlanlr Vursinx
Home, 235 NLRB 426, fn. 4 (1978); Hudgens i. R B. 424 U.S. 507. 510.
fn. 3 (1976).
and dismissed the complaint in its entiret!y. ('onse-
quently. it is necessary fr us to analyze the evidence
not only with respect to whether the lumpers are em-
plovees of Respondent, but also as to whether they
might be employees of some other entity, be it either
of the truckdrivers and their trucking companies, or.
pursuant to a relationship established between them
and Respondent, of both jointly.
Most of the testimony at the hearing relating to the
employment status of the lumpers was presented by
Jack Frost. who was the Ulnion's lumper steward on
Respondent's grocers dock. While the Administrative
Law Judge was critical of the "flavor and nuances of
Frost's use of language." he did not totally discredit
Frost's testimony or provide the basis fr the discred-
iting of such of Frost's testimony which appears clear
and is uncontradicted.h Only the latter will be consid-
ered in examining the issues herein. Furthermore.
while most of Frost's testimony related to the lumpers
active on the grocery dock, other lumpers who were
located on the produce dock appear to have been
treated somewhat differentl'. Where relevant, these
differences will be noted.
The lumpers were grouped into two different cate-
gories, depending on the frequency of their presence
at Respondent's facilit. The primary group of' lump-
ers. the resident lumpers. worked continuously at Re-
spondent's tacility while the other group, the casual
lumpers, were called in from the union hiring hall to
work I day at a time. At the time of' their expulsion,
there were 5 resident lumpers on the grocers dock,
whose numbers were supplemented by up to 12 ca-
sual lumpers, depending on the workload. An indeter-
minate number of other lumpers also worked on Re-
spondent's produce dock.
For more than 10 years prior to his expulsion. Jack
Frost Was active as a resident lumper and union stew-
ard on Respondent's grocery dock. Each morning he
would arrive early at Respondent's facility, stop at
the warehouse office. and ascertain the workload for
the day. This information was readily available be-
cause Respondent required incoming trucks to call in
beforehand and scheduleo their delivery time. Based
on this information, Frost or another lumper would
contact the union hiring hall and indicate the number
of casual lumpers needed on the grocery dock that
day.
From the record, it appears that the assignment of
lumpers to trucks occurred on a somewhat informal.
but routine basis. The resident lumpers. due to their
' In dismissing the complaint in this fashion, the Administrative Lasw
Judge failed to consider whether Respondent might have independenllIs io-
lated Sec 8(a)( I) of the Act as a result of statements made In June In the
presence of its emplosees with respect to the events ot Ma 21
I On the contrart'. it appears that the Administrative l.a' Judge relied on
portions of F rost's testimon) in his analysis of the lumpers' employee status
643
I)E('ISI()NS OF NATIONAl. I.AB()R RI.AII()ONS BOARI)
regular presence on the dock, became familiar with
certain truckdrivers or trucking firms, and tended to
work on their trucks more frequently than would the
casual lumpers. Trucks would be assigned lumpers in
order, absent a request for a particular lumper.
Respondent provided the facilities and equipment
used by the lumpers on the docks, including lockers,
forklifts, electric transporters, and pallets. Using this
equipment, each lumper worked alone in the truck
assigned to him except when, having finished his as-
signed truck ahead of a fellow lumper, he would assist
the other lumper with his work.
Although the Administrative Law Judge found
that Frost hired helpers, his testimony indicates that
the lumpers did not hire helpers and would not pay
other lumpers for their assistance. The basis for this
voluntary assistance, reciprocally offered, was to fa-
cilitate the unloading of the trucks by allowing lump-
ers to be ready for their next assignments at the same
time, thereby equalizing their pay.
In unloading the truck, the lumper did not act un-
der the explicit instructions of either Respondent or
the truckdriver. However, he was responsible for
stacking and separating the merchandise in accord
with the instructions of Respondent's receiving clerks
and he was otherwise familiar with routine proce-
dures for unloading trucks. In addition, in order to
coordinate the activities of the lumpers and Respon-
dent's receiving clerks, lumpers were required to ob-
serve the same break periods as the receiving clerks.
At such times it would be announced over Respon-
dent's public address system that there would be no
unloading during the break.
The form and method of payment varied somewhat
among lumpers. All of the lumpers were paid accord-
ing to uniform scales. The grocery lumpers were paid
on an hourly basis with a 2-hour minimum per truck
at a rate established pursuant to a collective-bargain-
ing agreement executed between the California
Trucking Association and a group of labor organiza-
tions, including the Union. The produce lumpers
were paid on a uniform piece rate basis established by
the California Public Utilities Commission. The
lumpers were paid by the truckdrivers or the trucking
companies, and did not have to account to Respon-
dent for these amounts.7 Frost testified that he was
paid most often by the trucking companies and some-
times by the truckdriver. If he was not familiar with
the truckdriver he would request payment in cash.
When paid by the trucking companies by check, as
was usually the case, he stated that in almost all cases
deductions would be made for social security, disabil-
ity, and income tax. Frost also stated he worked so
? Payments made to piece rate lumpers were passed on to Respondent by
the trucking companies in the form of segregated charges.
frequently on the trucks of one firm that he was car-
ried on their payroll. As resident lumpers would work
more frequently on trucks they were familiar with
than would the casual lumpers, it appears that the
resident lumpers typically would be paid by the
trucking companies in the manner indicated by Frost.
By examining the working conditions of the lump-
ers in light of the broader principle announced above
regarding statutory protection for all employees, it is
clear that the evidence provides an insufficient basis
for the Administrative aw Judge's determination
that they are independent contractors. The work per-
formed by the lumpers is an essential part of' the op-
erations of Respondent and of the trucks which sup-
ply Respondent's facility. Prior to their expulsion, the
resident lumpers had established a permanent rela-
tionship with Respondent and the incoming trucks.
The lumpers worked on Respondent's premises, used
its equipment, and stored their personal belongings in
lockers provided by Respondent. Compensation for
their work was determined by the terms of a collec-
tive-bargaining agreement or fixed piece rates so as to
provide no opportunity for the negotiation of differ-
ent rates. Frost testified that where a regularized rela-
tionship had developed between himself' and a par-
ticular trucking company, as was typically the case,
the trucking company often would deduct from his
paycheck amounts for social security, disability, and
income tax. As the lumpers have no significant pro-
prietary interest in the work performance,8 do not em-
ploy helpers, are paid at fixed rates, and perform
work which requires no special skills, it is clear that
they do not function as entrepreneurs in any conven-
tional sense. These factors, considered significant at
common law under the "right-of-control" test of em-
ployee status., indicate that the lumpers are not in-
dependent contractors. Moreover, while the work
performed by the lumpers appears to be routine in
nature so as not to require close supervision, there is
some additional evidence indicating that Respondent
exercised direct control over their work. They were
required to observe the same breaktimes as Respon-
dent's receiving employees and they stacked and
separated the merchandise according to the instruc-
tions of the receiving employees.
Although the Administrative Law Judge consid-
ered his conclusion of independent contractor status
supported by the principle of stare decisis, those cases
cited and relied on by him do not mandate this result.
In the trilogy of representation cases involving un-
I This finding is unaffected by Respondent's contention, raised flr the first
time in its answering brief, that produce lumpers provide their on rollers
used to unload produce.
9 Standard Oil (ompun,. 230 NLRB 967 (1977).
644
I.l.('KY SI()RtS. IN(C.
loaders for hay haulers,"' the unloaders were excluded
from the requested bargaining units because they
were found riot to be employees of the employer. The
Board based its determination on the fact that these
persons had made significant investments in their
own equipment and the employer made no payroll
deductions from the compensation theN received,
Furthermore, in P. Q. Beef' Processors, Ic.. 231
NLRB 1076 (1977), the Board majority relied on the
facts that the unloader found to be an independent
contractor had no payroll deductions taken from his
pay for work as an unloader and that he had hired a
helper and determined the latter's compensation. As
these factors are not present in the instant case, we do
not find these cases determinative.
Based on the foregoing, we find that Respondent,
the firms responsible for the incoming trucks, and the
lumpers have created a mutually beneficial pattern.
developed over an extended time, whereby either Re-
spondent or the trucking firms have jointly deter-
mined the essential terms and conditions of employ-
ment of the lumpers in sufficient degree so as to
render them employees within the meaning of Section
2(3) of the Act.'' Accordingly, we conclude that the
lumpers herein are employees within the meaning of
Section 2(3) of the Act and are entitled to protection
under the Act.
Events Occurring on May 21, 1976. and Thereafter
On the morning of May 21, Jack Frost and an un-
specified number of other lumpers were engaged at
Respondent's facility unloading trucks in the routine
manner, including remaining on the loading docks
prior to establishing on which truck they were to
work next.
At approximately noon, a truck operated by Asso-
ciated Freight Lines, which was escorted by a second
vehicle, entered Respondent's premises through the
main entrance on Merced Street. By way of a letter
dated May 10, Local 70 had informed several distri-
bution centers which did business with Associated
Freight, including Respondent, that a strike was in
progress and if Associated Freight attempted to oper-
ate its trucks these trucks would be followed by pick-
ets. In this instance, pickets did follow the Associated
truck and the escort vehicle, and they established a
picket line outside the Merced Street entrance, on the
boundary of Respondent's property. The Associated
10 El Monte Hav Market. Inc. 173 NLRB 1140 (1968). D L. Mudd Inc.,
173 NLRB 1142 (1968); and Quality Har C(ompanv. 173 NLRB 1144 (1968).
A In view of the protection accorded all employees under Sec. 7 ofthe Act.
regardless of the exact delineation of the employing enfit and the differ-
ences in working conditions among the lumpers. we do not consider it neces-
sary to decide whether the lumpers are employed b Respondent or the
trucking firms, Jointly or indisdualls
truck parked about 300 feet from the entrance. The
drivers in Respondent's outgoing trucks thereafter re-
fused to cross the picket line and parked their vehicles
on Respondent's property in front of the pickets.
Shortly thereafter. John Martin, Respondent's indus-
trial relations manager, appeared at the Merced gate
and informed one of the pickets that he could enter
the premises in order to picket the Associated truck.
The picket responded that he had been instructed
only to picket the gate.' 2 Martin then asked to see a
union business agent. Shortly thereafter, Union Busi-
ness Agent Edward Painter appeared and spoke with
Martin. Martin told him that the pickets were sup-
posed to picket the truck and not the gate. Painter
responded that, if the Associated truck was not there.
there would be no problem. Thereafter, Martin gave
Painter a deadline of 5 minutes to get the picket line
down or he would discharge the drivers who refused
to cross the picket line. Then. apparently prior to the
deadline, the Associated truck exited through the
front entrance followed by the escort vehicle and the
vehicle containing the ambulatory pickets. Immedi-
ately thereafter. Respondent's trucks which had been
parked in front of the pickets also proceeded with
their deliveries. Immediately after the trucks left,
Martin, joined by two other supervisors, Dick Haas
and C(liff Poole, went over to where Painter was
speaking to a group of Respondent's employees. Mar-
tin informed Painter that the lumpers no longer
would be allowed to stay on the property. but that
they would ha'ne to come and go with the trucks.
Martin then instructed Poole to radio the other super-
visors and tell them to put the lumpers off the prop-
erty. Later that day Haas informed Painter that Re-
spondent no longer had resident lumpers.
During this time Frost had been at work on the
grocers loading dock at the rear of Respondent's
premises. He had been informed of the presence of
the pickets and the Associated truck by incoming
truck drivers, but in answer to their questions stated
that he did not know about them. Prior to his being
able to finish unloading the truck he was working on,
12 There was some testimony that prior to this time when an outside truck.
which was involsed In a lablr dispute. entered the premises the ambulatory
pickets tlillAing the truck would enter the premises and picket onl 5 in the
vicinity of the truck. and not at the gate The Administrative L.aw Judge.
finding past practice not directly relesvant to the issues involved in the present
case. restricted the testimony on past practice or the legality of the Associ-
ated Freight picket line He did, however. admit intil eidence a letter dated
May 20 written by the Union to Respondent in which it was stated that the
nn understolod Respondent desired that picketing occur in the complex
and not at the gate In the letter. the Union stated that it was willing to agree
to the restriction it theya could hase a written agreement that pickets on
kespondent's propery would he held harmless for any damage which might
occur and that theN would be protected from physical abuse There is no
testimony that an, response wa, made to the nion cncerning this letter,
and the recolrd does not support the Adminlstratlse Law Judge's finding in
in 2 of his Decision that an agreement with respect to the location of such
picketing had been reached
64S
I)I:( ISI()NS () NA I I)NAI I ABOR RI. IONS BO()ARI)
one of the warehouse supervisors approached him
and told him to get off the property. When rost ob-
jected, he was told by the supervisor that, according
to orders, all lumpers had to leave the property. Frost
then went to the Merced Street entrance, saw Super-
visor Poole, and asked him what was going on. Poole
replied that the Union had had a procedure for pick-
eting and that procedure had been broken.
After their expulsion, the lumpers were forced to
wait outside Respondent's gates and arrange for the
unloading of trucks in that location. They were al-
lowed to enter the complex in the cab of the truck,
unload its contents, and leave the premises with the
truck. Since the lumpers were required to leave the
premises with the unloaded truck, they were not able
to assist other lumpers or to arrange to unload an-
other truck while still on the dock.
Respondent and the Union thereafter conducted
two grievance meetings in June, primarily involving
other matters, at which references were made to the
events occurring on May 21. In attendance at the first
meeting were Martin, Painter, Chief Shop Steward
Jay Gould, and [)rivers Steward Ron Lopez, the lat-
ter two also being employees of Respondent. Al-
though the meeting primarily concerned drivers'
grievances, Painter testified:
I asked John Martin what was the purpose of
kicking the lumpers off the property. I said,
"Kicking the lumpers"... well, I told him the
lumpers had nothing to do whatsoever, the
lumpers, they had nothing to do with that; it was
Associated Freight Lines.
And he said, "Kicking the lumpers off the
property was related to Lucky Stores as the
strike at Associated Foods [sic] was related to
Lucky Stores."
Martin did not deny that such an exchange had oc-
curred, but testified that by his response he meant
that there was no connection to any of the items, that
they were unrelated.' 3
At the second grievance meeting in June, attended
by Supervisor Haas, Painter, and Produce Steward
George Allen, who was also an employee of Respon-
dent, Painter asked Haas how they were going to
work by getting the lumpers back to their previous
status, and Haas replied that, if they would keep the
pickets off the gate, they would not have any trouble
with the lumpers. Haas did not testify at the hearing.
Allen testified that Haas told Painter, "'If it wasn't
for you and the pickets, the lumpers . . .'-and then
1t In his Decision, the Administrative L.aw Judge incorrectly indicated that
this exchange had occurred on May 21 after the lumpers had been ordered
off the property
he stopped, he said. 'well forget about that. That's not
what we are here for.' "
We agree with the General ('ounsel that under the
facts detailed above a prima fie case has been pre-
sented that the confrontation between the Union and
Respondent at the Merced Street entrance with re-
gard to the Associated Freight picket line was the
cause for Respondent's precipitous announcement
that lumpers were no longer allowed on its property
except on a restricted basis. Although there was only
minimal conversation between Martin and Painter on
the afternoon of May 21, it is clear that Respondent,
through Martin, contemplated taking strong action
when he discovered his drivers were honoring the As-
sociated Freight picket line. When this was no longer
necessary due to the departure of the Associated
truck. Martin immediately informed Painter that the
lumpers were being ordered off the premises. No dis-
cussion of the matter had preceded the announce-
ment, and the only apparent nexus that their expul-
sion had with any other event or condition was the
establishment of' the Associated Freight picket line. It
therefore appears that Respondent was acting in re-
taliation against the lumpers for the actions of' the
Associated Freight pickets and Respondent's drivers
wvho honored the picket line, all of whom were mem-
bers of' the same labor organization. As previously set
forth, on two subsequent occasions Respondent's su-
pervisors noted the connection between the Associ-
ated Freight picket line and the lumpers' expulsion.
In June Martin told Painter that the lumpers' expul-
sion was as related to Respondent as was the strike at
Associated Freight.'4 and tlaas told Painter that, if
there had been no trouble with the pickets, there
would have been no trouble with the lumpers.' In
addition, in view of the fact that these two statements
were made in the presence of Respondent's employ-
ees and the union stewards in attendance at the griev-
ance meetings, it is clear that the General Counsel has
presented a pritnafiwcie case that Respondent also vio-
lated Section 8(a)(I) of the Act by informing the em-
14 In questioning Martin with respect to this discussion with Painter. coun-
sel for Respondent stated. "I believe Mr. Painter asked ou what do lumpers
have to do with Associated Freight ines. and you said back to him. 'What
do Associated Freight Lines have to do with Lucky Stores.' " 'I hat this is a
slight departure from Painter's exact testimony does not affect our conclu-
sions here, inasmuch as under either version the interrelationship of the
operations of Associated Freight and Respondent. and of the lumpers' expul-
sion. is clearly drawn into the discussion.
While Martin testified that at the time he meant that there was no such
relation between Respondent and either of the eents. it is apparent that
such a subjective meaning is not readily extracted rom the words used. 01n
the contrary,. the events were in fact related. as the record clearly shows that
significant portions of Respondent's operations were shut down during the
time that the Associated Freight picket line as established at the front
entrance.
'' While Allen's version was soniewhat more truncated than Painter's.
even his version established a clear connection between the pickets and the
lumpers.
046,
L.U(CKY S-ORES. IN(C.
ployees of its earlier act of retaliation against the
lumpers.'6
While Respondent accurately points out that the
lumpers were not involved in the events which pre-
ceded their expulsion, no such direct involvement
need be shown. In a series of cases, the Board has
uniformly held that an employer violates the Act if it
discharges an employee based on the concerted ac-
tivity of a relative.' Such a principle is equally appli-
cable where the connection between the two persons
or groups is not a blood or marital relation, hut is
rooted in their common membership in the same la-
bor organization.
We likewise reject Respondent's argument that no
violation of the Act occurred because the establish-
ment of the picket line at the front entrance was un-
protected. Respondent. citing A.4.4 MIotor Lines. In(..
211 NLRB 608 (1974). argues that the Associated
Freight pickets were obliged to request permission to
enter Respondent's premises and that they were not
at liberty to reject Respondent's invitation to enter
and picket in close proximity to the Associated truck.
Failing to do this, Respondent argues the establish-
ment of the picket line at the more remote gate was
designed to enmesh neutral employers, in this in-
stance, Respondent. While this argument might have
been relevant had Respondent chosen to act against
persons who acted in sympathy with the Associated
Freight pickets, such as Respondent's drivers who re-
fused to cross the picket line, such an argument is not
available where the individuals retaliated against
have not acted directly in support of alleged unpro-
tected activity."
We find unpersuasive Respondent's attempt to re-
but the General Counsel's prinma facie case. Respon-
dent contends that the expulsion of the lumpers was
not causally related to the problem of the Associated
Freight picketing. but that it merely "took the oppor-
tunity" at that time to inform the union business
agent of its decision to expel the lumpers that it had
reached several days earlier, on or about May 10.
While Respondent Manager Martin testified that he
had tried to reach business agent Painter several
times between May 10 and May 21 and ftound that he
i6 Although the complaint only specified that Supers isor Haas made state-
ments in violation of Sec.
8(a) I) during June. the record shows that these
comments made by Martin in June were matters fully litigated at the hear-
ing.
" Ram. Inc. 218 NLRB 430. 433 (1975)1 Hickman Garment (omprns. 216
NLRB 801 (1975) lVanella Buick Opel Ins. 191 NRB 805. 806 (19711:
Murray Golub. Selwyn Golubh and 41/her Golub d/h/ua Golubh ns (B'sse Cv-
sions. 140 NLRB 120 (1962).
1B In view of the above, we do not consider whether the picket line, s
argued by Respondent. should have been established inside Respondent%,
premises.
was not available,'l it took no other steps. such as a
letter or telegram, to inform Painter of the decision or
to implement it. Indeed, even according to Respon-
dent's version, its intention to remove the lumpers
was not set for implementation as soon as possible
after May 10, but was contingent on factors other
than the availability of Painter. Further testimony by
Martin reveals that he and two other supervisors had
made the decision to remove the lumpers "when the
labor relations climate was proper to do that." In ex-
plaining this statement. Martin further testified, "The
decision was made and final. It was a matter of tim-
ing to effectuate it." Given such admitted leeway in
the execution of Respondent's alleged prior decision
to remove the lumpers. it is apparent that, even ac-
cording to Respondent's version, the timing of their
expulsion was directly related to the Associated
Freight picketing. as there is no evidence to indicate
that they had decided to implement the alleged deci-
sion prior thereto. The precipitous timing of the
lumpers' removal is a clear indication that their re-
moval was in retaliation for the dispute which oc-
curred at the front entrance.
We are also unpersuaded by the amalgam of as-
serted reasons which Respondent has presented to
show that the removal of the lumpers was nonretalia-
tory. Some of the reasons cited bh Respondent do not
support its decision at all. As noted above. Respon-
dent prevented the lumpers from soliciting work only
on its premises. but continued to allow them to work
on the incoming trucks, as long as the) entered and
left with those trucks. Yet. at least two of the reasons
cited by Respondent are directly related to a total
prohibition of lumpers from Respondent's premises.
something Respondent asserts that it never intended.
In this regard, one of the reasons stated by Respon-
dent was that they could not control the lumpers and
that it desired to prevent acts of misconduct by them.
Yet the alleged misconduct still could occur. as long
as the lumpers were allowed access.20 The second in-
applicable reason given by Respondent concerns its
acquisition of information in early May that the tariff
schedule for the piece-rate lumpers was going to he
raised by California Public Utilities Commission,
thereby increasing unloading costs incurred b Re-
spondent by 45 percent. Again, this factor would be
relevant only if Respondent prevented the lumpers
from unloading incoming trucks, for Respondent ad-
mits it was obligated to pay the unloading charges
even after the lumpers were removed from the prop-
1 I he Adminlsrative Law Judge relused t all,s the (,ener.ll ('tlunsel to
Introduce testlmon oni rebuttal regarding Pnienter's as.iil.abils during this
period. as indicated in fn . a ise.
!11 The three examples ot lumper mnlsonducl cited hs Respondent predate,
their exputxlon hb miore than a1 sear
647
Dit(CISIONS OF NATIONAL LABOR RELATIONS BOARD
erty.2 While Respondent also stated it was concerned
over its exposure to "public liability" for injuries to
nonemployees which was not limited by the Califor-
nia Employees Compensation Law, its concern here
was not directly with the presence of t'e lumpers, but
only with its ability to determine for whom the
lumper was working at any particular time. While
Respondent's decision to let a lumper on the premises
only when accompanied by the truck he was to work
on would serve to identify the truck being unloaded,
it does not explain how this would further serve to
limit its "public liability" for injuries to nonemploy-
ees. Finally, Respondent alleges that the Interstate
Commerce Commission had informed it, along with
several other distribution centers in October 1975,
that the presence of lumpers on distribution center
property was considered by the ICC to he an unlaw-
ful rebate where the services of the lumper were not
charged to Respondent.2 2 At meetings attended by in-
dustry representatives in January and March 1976, a
representative of the ICC23 threatened prosecution in
the future for such practices. While such threatened
action by the ICC was of clear relevance to Respon-
dent, Respondent has not adequately explained why
it took no action for over 7 months following receipt
of the original letter from the ICC24 and for 4 months
following the initial threat of prosecution. That the
alleged unlawfulness of the lumpers' presence was not
an adequate explanation for their expulsion is addi-
tionally clear from Respondent's admission that at
the time of its asserted May 10 decision it did not
intend to expel the lumipers until some indefinite fu-
ture time. We therefore conclude that the reasons
proffered by Respondent to show that it acted in a
nonretaliatory manner are insufficient to show that its
actions were unrelated to the picketing which oc-
curred at its front entrance on May 21.25
Accordingly, for the reasons stated above, we find
that Respondent violated Section 8(a)(I) of the Act
by expelling the union lumpers from its distribution
center premises on May 21, 1976, and thereafter re-
2 See fn. 7.
22 More generally, the October letter referred only to Respondent's possi-
ble involvement in "requesting, requiring., fostering. or otherwise acquiescing
in conditions that cause such carriers to furnish services involving the provid-
ing of extra labor for loading or unloading; requiring the carrier to sort or
segregate freight according to size, description or other criteria, such as for
example. placing shipment on receiver's pallets In a specified order, manner
or count: or requiring carriers to make appointments fr pickup of delivery
of services."
23 The Administrative Law Judge incorrectly identified this representative
as being a commissioner with the California Public Utilities Commission.
2 Martin testified that problems with respect to sorting and segregating
freight had been corrected and that the ICC had recognized that the issue of'
carrier scheduling was not amenable to a solution at that time.
23The legislative material from 1978 cited by the Administrative Law
Judge in his Decision and attached as an Appendix has no hearing on
whether Respondent acted in an unlawful retaliatory manner by its conduct
on May 21, 1976.
stricting their access to its property as described
above, in retaliation for the Union's involvement in
picketing Respondent's front entrance on that date.
Furthermore, we find that Respondent violated Sec-
tion 8(a)( I) of the Act by statements made by its su-
pervisors in June 1976 in the presence of Respon-
dent's employees which indicated that Respondent's
actions on May 21 were retaliatory.
CON(CI.SIONS ()OF LAVw
1. International Brotherhood of Teamsters, Chauft
feurs, Warehousemen and Helpers of America, Local
70, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
3. By expelling from its premises on May 21, 1976,
those lumpers who had previously had unrestricted
access to Respondent's property. and thereafter re-
stricting their access to its property only during such
times as they were accompanied by trucks which were
in the process of delivering merchandise. Respondent
has interfered with the lumpers' Section 7 rights as set
forth in the Act by discouraging membership in, or
activities on behalf of. the Union and has thereby
violated Section 8(a)( ) of the Act, as their expulsion
on that day was in retaliation for the acts of other
individuals and employees who were involved in
picketing at Respondent's front entrance, with whom
they shared a common membership status with the
Union.
4. By expressly indicating on two occasions in June
1976, in the presence of its employees, that the cause
for the lumpers' expulsion from its premises on May
21, 1976, was in retaliation for the Union's picketing
at its front entrance on that date, Respondent has
thereby violated Section 8(a)( I) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(1) of
the Act, it shall be ordered to cease and desist there-
from, and to take certain affirmative action designed
to effectuate the policies of the Act.
Having found that Respondent unlawfully expelled
the lumpers from its premises and thereafter re-
stricted their access to their facilities, we shall order
them to allow lumpers on their premises to the same
extent as had been the practice prior to their expul-
648
LUCKY STORES. INC.
sion on May 21. 1976.26 The General Counsel has also
alleged that the lumpers lost earnings as a result of
the additional restrictions imposed on May 21. 1976.
While the extent of losses has not been sufficiently
clarified by the record herein, the record does indicate
that the amount of time these employees could spend
working was restricted by the requirement that they
ride into and out of the premises in the trucks they
would unload, as well as other restrictions or their
method of operations. We shall therefore order that
these employees be made whole for any loss of earn-
ings suffered as a result of Respondent's unlawful ac-
tivity. with backpay and interest computed under the
Board's established standards. in accordance with the
formula set forth in F. '. Wf'oolworth Conmpan v, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).27
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent.
Lucky Stores, Inc.. San Leandro, California, its offi-
cers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on
behalf of, International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America.
Local 70, by expelling lumpers from its premises and
restricting their access thereto, in retaliation for the
acts of other union members who had engaged in
picketing at Respondent's front entrance on May 21.
1976, and by thereafter telling its employees that the
lumpers' expulsion had been so motivated.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Allow those lumpers access to its premises in
the manner and to the extent that it had allowed prior
to May 21, 1976.
(b) Make whole those lumpers who previously had
been allowed access to Respondent's property for any
loss of earnings they may have suffered as the result
26While Respondent has asserted that it removed the lumpers from its
premises in part as a result of communications from the ICC that their
presence on Respondent's property was unlawful. it is clear that the alleged
unlawfulness of their presence was due to the additional charge that Respon-
dent was not reimbursing the truckdrivers or trucking firms for the charges
paid the lumpers. Although such reimbursements might entail additional
expenditures by Respondent, this obligation was equally applicable pnor to
the events herein.
t
See. generally. Isis Plumbing d Heating Co., 138 NLRB 716 (1962)
of the restrictions imposed on their access to Respon-
dent's property subsequent to May 21. 1976.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying.
all payroll records, social security payment records.
timecards, personnel records and reports. and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its distribution center at San Leandro.
California. copies of the attached notice marked "Ap-
pendix." 28 Copies of said notice, on forms provided
by the Regional Director for Region 32, after being
duly signed by the representative of Respondent.
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places. including all
places where notices to employees are customaril
posted. Reasonable steps shall be taken bh Respon-
dent to insure that said notices are not altered, de-
faced. or covered b any other material. No other
material relative to this matter shall be posted during
this period.
(e) Notify the Regional Director for Region 32. in
writing. within 20 days from the date of this Order.
what steps Respondent has taken to compl\ herewith.
28 In the event that this Order is entforced b a Judgmentl ta Unled
States C(ourt of Appeals. the words in the notice reading "Posted bh Order of
the National Lalbor Relations Board" shall read "P,,sted Pursuin to aI Judg-
ment of the United States (ourt of Appeals Fnhrclng an Order t the Na-
tional Labor Relations Board"
APPI!N DIX
Nol(I I ( ) EPI()Y1oYi iS
P()osiI 1) H ORI)ER ()t- Ill
NAII()NA I LABO()R R:I.All()NS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their testimony. the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act, as amended. and has ordered us
to post this notice. We will carry out the Order of the
Board.
WF wt.L NOT discourage membership in. or
activities on behalf of. International Brother-
hood of Teamsters. Chauffeurs. Warhousemen
and Helpers of America, Local 70. or any other
union, by expelling employees engaged as lump-
ers from our premises and restricting their access
thereto, in retaliation for the acts of other mem-
bers of this Union who had engaged in picketing
at the Merced Street entrance on May 21. 1976.
and by thereafter telling our employees that that
was the reason for the lumpers' expulsion.
649
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL. NOIt in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their right to form, join, or assist, or be
represented by any labor organization, to bar-
gain collectively through representatives of their
own choosing, or to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection. or to refrain
from any or all such activities.
WE WiLL allow lumpers access to our premises
for the purpose of soliciting work unloading mer-
chandise from incoming trucks.
WE WILL. make whole those lumpers who pre-
viously had been allowed access to our premises
for any loss of earnings they may have suffered
as the result of the restrictions imposed by us
regarding their access to our premises subse-
quent to May 21, 1976.
LUC(KY SIO)RES, IN(C.
DI)E(ISION
SIAILMINI 1OF 111i CASI
HL NRY S. SAIIM, Administrative Law Judge: I his case is
based upon an unfair labor practice charge filed by the
above-named labor organization and a complaint issued on
January 28. 1977.7 on behalf of the General Counsel of the
National Labor Relations Board, herein called the Board,
by the Regional Director of the Board, Region 20. The
complaint alleges that Lucky Stores, Inc.. herein called in-
terchangeably Respondent, the Company, and Lucky, has
engaged in unfair labor practices against truck freight un-
loaders, also called lumpers, who are alleged in the com-
plaint to be employees of Respondent within the meaning
of Section 2(3) and thus Section 8(a)( I) of the Act was vio-
lated when Respondent refused to allow lumpers to solicit
work on Respondent's premises. Respondent denies the
lumpers are its employees within the meaning of Section
2(3) of the Act.'
Upon the entire record in the case and from the under-
signed's observation of the demeanor of the witnesses while
I The charge filed by the Union reads as follows: "tTlhe employer has
evicted area lumpers from its distribution center thereby adversely affecting
their opportunities to obtain employ ment from motor carriers which make
deliveries at [Respondent's distribution center. The employer's reason lbr
this action was to punish the area lumpers for having cooperated and partici-
pated in lawful union activity."
2 The term employee shall include any employee, and shall not be limiled
to the employees of a particular employer, unless the Act explicitly states
otherwise, and shall include any individual whose work has ceased as a
consequence of. or in connection with, any current labor dispute or because
of any unfair labor practice, and who has not obtained any other regular and
substantially equivalent employment, but shall not include any individual
employed as an agricultural laborer, or in the domestic service of any family
or person at his home, or any individual employed by his parent or spouse.
or any individual having the status of an independent contractor. or any
individual employed as a supervisor, or any individual employed by an em-
ployer subject to the Railway Labor Act, as amended from time to time, or
by any other person who is not an employer as herein defined.
testifying, and after due consideration of the post-hearing
briefs filed by the parties, there are hereby made the follow-
ing:
FINDIN(iS ()I FA( I
The Respondent. Lucky Stores. Inc.. a C('alifornia corpo-
ration, is engaged in the business of operating a chain of
supermarkets. Respondent annually receives from its busi-
ness operations gross revenues in excess of $500,000. It an-
nually purchases goods, materials, and supplies valued in
excess of $50.000 directly from suppliers located outside
California. Respondent admits the foregoing allegations.
Accordingly, it is found that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6). and (7) of the Act.
The Charging Party. International Brotherhood of Team-
sters, Chauffeurs. Warehousemen and Helpers of America.
I.ocal 70. herein called interchangeably the Charging Party,
the Union, and Local 70, is a labor organization within the
meaning of Section 2(5) of the Act.
Introduction
Lucky Stores operates a distribution center and ware-
house at San Leandro, employing approximately 1,200 per-
sons, of which about 350 are members of the Union. At this
location it receives deliveries of meat, produce. groceries,
and other food products from many states for eventual de-
livery in its own trucks which are driven b members of the
Union to its retail grocery stores located throughout north-
ern California.
For many years prior to May 1976.' these foods products
have been delivered to LIucky's distribution center in trucks
originating in California as well as other states. These
trucks are normally occupied by only the driver who in
some instances is the independent owner of the truck he
drives.
The truck enters l.ucky's premises through a gate at
which a guard is stationed, then the driver proceeds to back
his truck flush against the unloading platform. After step-
ping down from the cab of the truck, he is approached by a
lumper, who is a member of the Union.4 The lumper un-
loads the contents of the truck onto a pallet located on
Lucky's receiving platform. For these services the lumper or
unloader is paid a fee, the amount of which is determined
by the lumper. The lumper or unloader is in no way ac-
countable to Respondent for fee charges and monies re-
ceived from individual truckers and trucks owned by freight
companies for unloading food products consigned to Re-
spondent and unloaded from the truck by the lumper onto
pallets located on Lucky's receiving dock. he receiving
handlers, employees of Respondent I.ucky Stores, then
I All dales herein refer to 1976 unless otherwise indicated.
'The term lumpers originally developed in the fishing industry An inte-
gral part of the fisherman's work was unloading the fish from the boat. This
work in the trade is known as fish lumping. As the economic condition ot
fishermen improved, they were able to afford men who unloaded the fisher-
mens' catch when they came into port from a fishing trip. These unloaders
came to be known as lumpers. Sea Fo*od Produccr A iairon of Newh Bed-
ford. Inc., 95 Nt.RB 1137, 1138. 1139 40 1951).
650
I.ICKY STORES. INC.
transport the consignment from the receiving dock where
the lumpers had unloaded the f'ood products onto pallets.
Lucky's employees then move the loaded pallets into
Luck 's warehouses.
Correspondence from the (alifornia Public Utilities
Commission entitled "Charges for Loading and Unload-
ing," dated May 18. provides in paragraph 2 that. "If the
services of helpers. lumpers or sw;ampers are emplo\ed b\
the carrier to perform or assist in the perlformance of un-
loading or other accessorial services rendered under this
tariff at the point of destination, the charges set forth in
notes 3 and 4. as applicable, shall he billed directls to and
collected from the debtor. The charges shall be in addition
to all other rates and charges accruing under this tarift or
under alternatively applied common carrier rates. . . Ihe
accessorial charges provided in notes 3 and 4 are in addi-
tion to those set forth in notes I and 2."'
On September 12. 1975, Richard Haas. superintendent of
Respondent's distribution center. obtained from .;an l.ee,
an official of the Del Monte Corporation. a Del IMonte in-
teroffice memorandum which laas forwarded to John
Martin. Industrial Relations Manager of L.uck_ Stores. that
reads as follows:
Routing Slip
To: John Martin
For: Information Only
This is a Del Monte memo sent to me bh Jan Lee.
Date: 9-12
From: Dick Haas
To: George Denison
cc: R. E. Crawfbrd
J. G. Lane
This is in regard to our telephone conversation con-
cerning the assessment of lumper charges b the var-
ious truck carriers for shipments to local bus ers from
the Northwest, etc.
The Interstate Commerce Commission has just com-
pleted an audit of the records of the long-line carriers
in the Bay Area, and have observed the fact that the
truckers have not been assessing the charges for lump-
ers which have to be hired at the various consignees
warehouses. The tariffs contain provisions for charges
to be assessed on an hourly basis. but the carriers have
largely ignored this item in the past. The ICC has in-
structed the truck lines to immediately implement the
tariff provision and to start billing for these charges.
Almost without exception. the truckers are required to
hire lumpers at the various grocery houses because of
union policies.
The ICC auditors further advised the carriers that if
implementation is not immediate, the records would he
audited for the past three years and the truckers would
be required to send balance-due bills for all past ship-
ments within the three-year period. Needless to say.
the carriers intend to comply as of this date.
Per our discussion. we will request that the truck
lines bill the consignees for any lumper charges in-
curred on their docks, rather than including these
charges along with the freight. The shipments in,ols ed
are normall tendered oin a prepaid hbasis and are sold
l:()B our plants. YOu ill no doubt want to contact the
sales office upon the receipt of' this memo so that e
mats adise our customers of the facts outlined above '
A letter dated October 3. 1975. from . W. Van ('leae.
regional director. Bureau oft' Operations. Interstate ('om-
merce ('olmmission, to Respondent states:
It has ome to the attention of this otffie that ,Our
coilpanlll mnla he involved in the solicitation accept-
ance or receipt of concessions from the motor carrier
industry in particular and other tpe carriers generall.
It is alleged that this is being accomplished through
such means as requesting. requiring. ostering. or otlh-
erise acquiescing in conditions that cause such carri-
ers to furnish services involving the providing of extra
labor for loading or unloading: requiring the carrier to
sort or segregate freight according to size. description
or other criteria, such as for example. placing shipment
on receiver's pallets in a specified order. manner or
counlt; or requiring carriers to make appointinlents for
pickup or deliver services. It is further alleged that
such transportation services are being proided in the
absence ot appropriate carrier tariff pro-visions to co cer
such services or, where provided hb tariff. it is alleged
that no charges are being assessed or collected tfor such
services pursuant to said pro isions.
Section 216b). part II. Interstate Commerce Act (49
I.S.('. §3161b(h)) pros ides:
It shall be the dut\ of ever conimmion carrier of prop-
errt hb motor ehicle to pro ide sale and adequate
serice, equipment. and facilities ftor the transportation
of propert 5 in interstate or foreign commerce: to estab-
lish. observe. and enforce lust and reasonable rates.
charges. and classificatiolns and Just and reasonable
regulations and practices relating thereto and to the
manner and method of presenting. marking, packing.
and deliscring propert for transportation. the facili-
ties lor trarlsportation, and all other matters relating to
or connected with the transportation of propert' in in-
terstate or foreign commerce.
Section 217(b) of Part 11 of the Interstate ('ommerce
Act (49 I.S.C. Section 317(b)) provides in part as ttol-
lows:
No common carrier b motor vehicle shall charge or
denland or collect or receive a greater or less or differ-
ent compensation for transporta;tion or t'or an service
in connection therewith between the points enumerat-
ed in such tariff than the rates, fares. and charges
specified in the tariffs in effect at the time: and no such
carrier shall refund or remit in any manner or bh anl\
device. directl or indirectly. or through any agent or
broker or otherwise, an' portion of the rates, fares. or
charges so specified. or extend to any person any privi-
leges or facilities for transportation n interstate or for-
eign commerce except such as are specified in its tar-
iffs ...
See pp 3 4 ol the transcript
(51
See Resp. Exh 7.
DEC('ISIONS OF' NATIONAL LABOR RELATIONS BOAR[)
Section 222(c). part II. Interstate Commerce Act (49
I'.S.C. §322(c)) provides:
Any person. whether carrier. shipper. consignee, or
broker, or any officer. employee. agent. or representa-
tive thereofl who shall knowingly offer, grant, or give,
or solicit, accept. or receive any rebate, concession, or
discrimination in violation of' any provision of this
part, or who by means of any alse statement or repre-
sentation. or by the use of any false or fictitious bill.
bill of lading, receipt, voucher, roll, account, claim.
certificate. affidavit. deposition, lease, or bill of sale, or
by any other means or device, shall knowingly and
willfully assist, suffer or permit any person or persons.
natural or artificial. to obtain transportation of passen-
gers or property subject to this part for less than the
applicable rate. fare, or charge. or who shall knowingly
and willfully by any such means or otherwise fraudu-
lently seek to evade or defeat regulation as in this part
provided for motor carrier or brokers, shall be deemed
guilty of a misdemeanor and upon conviction thereof
be fined not less than $200 nor more than $500 for the
first offense and not less that $250 nor more than
$2.000 for any subsequent offense.
Should your company be found to be engaged in the
activities, o any of them, described above. your com-
pany could be in the position of soliciting, receiving or
accepting concessions, and/or in the position of aiding
and abetting an unlawful activity by the carrier, in vio-
lation of the above-cited provisions of the Interstate
Commerce Act. Your specific attention is directed to
Section 222(c). insofar as it relates to shippers or re-
ceivers of freight.
It is requested that you respond to this communica-
tion as expeditiously as possible, but in any event
within 15 days receipt thereof. confirming or denying
whether your company is engaged in any of the de-
scribed activities; your company's position with re-
spect to such activities; and what action, if any, you
contemplate taking with respect to these matters.
Thank you for your anticipated cooperation.
On October 22. 1976. R. A. Haas, warehouse-distribution
manager. sent the following letter "individually addressed
to quite a number of shippers who deliver perishable pro-
duce to Lucky's distribution center" which reads:
Effective 6:30 a.m. Monday. April 18, 19. 119761]. there
will be a change in produce unloading procedures at
our distribution center in San Leandro. Building #6
only.
On the above date, produce trucks requiring unloading
help, other than the driver, will have that help pro-
vided by Lucky Stores. Inc. from its warehouse staff.
There will be some exceptions to this procedure. Carri-
ers must provide their own help for unloading of bulk
melons, and in some other situations we may ask you
at the time of purchase to provide the necessary un-
loading help.
Please inform your drivers that they must contact the
supervisor in charge of the above mentioned building
before unloading.
Haas sent the following letter dated October 27. 1976. to
the California Public Utilities Commission:
Dear Sirs:
I recently sent you a letter stating our intention to
change the produce unloading procedures at our Dis-
tribution Center in San l.eandro. Circumstances have
caused us to postpone the start of this program until a
later date.'
The estimony
General Counsel's Witnesses
Jack Frost, who testified on behalf of the (iGeneral Coun-
sel. is alleged to have been interfered with. restrained, and
coerced in the exercise of rights guaranteed him in Section 7
of the Act. It is also stated in the complaint that Frost, who
is a grocery lumper, is an employee of Respondent within
the meaning of Section 2(3} of the Act. The General Coun-
sel contends that when Frost was evicted rom l[uckv's
premises and not permitted to continue soliciting work
from the drivers to unload their trucks on Respondent's
premises by requiring the lumpers to make their unloading
arrangements with the truckers off the C'ompany's property
while the truckers were approaching Lucky's entrance gate.
Section 8(a)( I) of the Act was violated.
Frost testified that he "was assigned there [Respondent's
distribution center] by the Union dispatcher as an area
lumper" on June 17, 1964, and later appointed a lumper
steward on February 1, 1965. by the Union. He described
his duties as a lumper as "basically just help[ing] the incom-
ing trucks get unloaded ... at the grocery dock .... Mostly
it worked out I kept the other lumpers assigned to their
jobs, and any time there was a casual laborer who was not
performingjust right fr sure they would come and get me.
not to interpret union rules. but to remind him there were
union rules." "In addition." testified Frost. "three lumpers
worked the grocery dock, and two part-time lumpers han-
dled the unloading of the non-food . . . and the several
casuals we called out of the union] hall each morning ....
We would line up the work." (Emphasis supplied.)'
Frost testified that "we would approach" truck drivers
and in the case of "strangers" we would "call the [union]
hall." When asked by whom the lumpers were paid, he
answered that if the truck driver owned the truck, it was
paid by him or in the case of the driver not owning the
truck then the company he worked for paid the lumper's
fee.
It was stipulated that Respondent supplied the unloading
equipment and provided the lumpers access to the receiving
platform until such access was revoked on May 21, under
circumstances detailed below. The lumpers took the same
breaks in the morning, at lunchtime, and in the afternoon
as "Lucky house employees." This was necessitated by the
7 It appears the "circumstances" mentioned. were Respondent deciding in
May to move the lumpers off its premises which is detailed. nriu
"The "we" refers to Frost and another "resident" lumper named Jerr,
Moura. "Resident'" is synonymous with "regular" as distinguished from "ca-
suals." who were requested by Frost and dispatched from the union hiring
hall when extra help was needed to unload waiting trucks.
652
LUCKY STORES. IN(C.
receiving personnel, "I.ucky's house employees," when they
took their breaks because food products unloaded from the
trucks by the lumpers onto pallets were then transported as
soon as possible by the Lucky house employees into the
warehouse.9
Frost first testified that a truck driver could "hire" a par-
ticular lumper. but when asked again whether the truck
driver had "to hire a particular lumper." Frost answered:
"According to the rules, yes. If a truck driver did not want
one particular lumper and preferred another, there was no
point. I mean, if he had not been using the guy before and
it was not his time up, we still let him use the man he
wanted."
Frost testified that on Friday, May 21, the lumpers "went
home a little early." As they approached the "front gate" to
leave Respondent's premises, they saw Local 70's pickets
patrolling on Respondent's property line outside the
Merced Street truck gate. Frost's testimony continued that
these lumpers inquired of him, "what do those pickets
mean" and "what they should do," and [he] replied: "I
don't know anything about them." So, shortly thereafter,
while he was unloading a truck, one truck driver came in
and said, according to Frost. "There is an Associated
Freight Lines truck that came in the front gate to make a
delivery and [Local 70's] roving pickets." Frost added that
he was unable to finish unloading the truck he was then
working on because Gary Abrew, the assistant warehouse
superintendent, "told me I had to get off the property ... I
verbally objected. I hadn't done nothing. He said, 'That's
my orders. All lumpers have to leave the property.' " The
colloquy terminated with Frost stating that he had not been
paid for the truck he was then unloading. Frost testified he
then walked to the Merced Street truck gate and he ob-
served "some pickets walking back and forth with Associ-
ated Freight signs." The Associated Trucking Company
was then involved in a labor dispute with Teamsters Local
70 whose ambulatory pickets followed their trucks wher-
ever they made deliveries. Respondent was not involved.
Frost continued that he walked over to the vicinity where
the Local 70 Teamsters were picketing, which was near the
Merced Street gate to Respondent's premises, and spoke to
Poole, the warehouse superintendent and Haas, superinten-
dent of Respondent's distribution center. Frost stated he
asked Poole: " 'What's going on?' and Poole's answer was,
'You [the Union] have always had a procedure for picket-
ing. The Union broke the procedure . . . ' There was some
more conversation [and then] I told [Haas], 'Well this is
probably it, then. I want to thank you for the way you have
treated me through the years and I want you to know I'm
leaving with a smile on my face .. .' It kind of took him by
surprise that I said, 'This may be it,' and he said to [Poole]
'As mad as John Martin is, [Lucky's industrial relations
manager] Jack [Frost) is probably right about that. This is
the end of the lumpers.' " Frost concluded this phase of his
testimony by stating other lumpers were present "and a
[Union] business agent materialized there and everybody
was shouting and hollering, and in a little bit Mr. Poole
I The General Counsel stated that by this testimony she was "attempting
to establish on the record that the lumpers were employees of the truck
dnvers and also were employees of Lucky."
came and he responded, he gave the lumpers a little peech.
and I left."
Frost returned to work at Lucky's distribution center the
following Monday morning at his usual starting time. "I
had only been working a few minutes and Mr. AhreA
[assistant superintendent of the warehouse] came out and
told me, 'Didn't I understand I wasn't supposed to come
back on the property?' And I said. 'Nobody told me not to
come back on the property.' . . . Frost continued: Mr. Poole
says, 'Didn't I tell you last night [Sundv] you could not
come back on the property?"' I said, 'You did not tell me.'
And he said. 'Yes. I did. I told everybody.' And I said to
[Poole], 'If you stop and think. I was not at that meeting.'
And then he said, 'Did you note things had changed?' And
I said, 'I'm not going to lie to you, but on the advice of m
union, they told me to come on in until I was told not to
come in any more.'"
When the General Counsel's representative asked Frost
leading question, namely: "After this day until you stopped
working for Lucky's. did you contact drivers outside the
gate of the Lucky's distribution center," Frost answered:
"Yes.""
On cross-examination. it was elicited that when the Asso-
ciated truck left Respondent's premises the ambulators
union pickets patrolling the truck entrance of the Coompa-
ny's distribution center ceased picketing. entered two auto-
mobiles, and followed the Associated truck as it sped
away.2
Frost testified that sometime between November 1975
and April 1976. he and his Union's business agent were
present at a meeting in Martin's office. at which time the
letter from the Interstate Commerce Commission to Re-
spondent was discussed. This letter is set out in full xupri.
and concludes with the allegation that the food industrN
was engaged in aiding and abetting the lumpers in oer-
charging truckers in the unloading of their vehicles.
Frost on his cross-examination acknowledged that l.uck
had placed forklifts on its grocery unloading docks for both
the truckers and the lumpers to use, but that he. as the
lumpers' union steward, complained to Luck) that the fork-
lifts should he made available exclusively to the lumpers
and that the use of these forklifts should be denied to truck-
ers delivering food products consigned to Respondent. Per-
mission to use these forklifts had to be obtained from the
forklift supervisor, an employee of Respondent.
At another point in his cross-examination. Frost denied
that he complained to Martin, Lucky's industrial relations
'0 It is undisputed that the Associated picketing incident occurred on Fri-
day, May 21. See par. Vl(a) of the complaint.
" This is an unmistakable reference to the gist of this case, namely, as
alleged in the complaint: "Respondent, through Martin, has refused to allow
employees to solicit work on Respondent's premises" as the sole issue is
whether lumpers are employees of Respondent within the meaning of Sec-
tion 2(3) of the Act.
" It appears to be undisputed, as the General Counsel offered no evidence
to the contrary, that the Union had agreed on May 20. 1976, to Respondent's
proposal that when Local 70 was involved in a labor dispute with an individ-
ual trucker or freight company it would confine its picketing to the truck
itself while it was on Lucky's prermses When such trucks were parked inside
Respondent's premises, picketing would be limited to the truck of the com-
pany with whom the Union had a labor dispute and it would not picket at
the gate in order to permit Lucky's trucks. dnsven by Lucky employees,
members of Local 70, to use this gate without having to cross a picket line
See Resp. Exh 6.
6'3
)E(4 ISIONS ()1: NA IIONAI IABOR RELATIONS BOARI)
manager, that "he or Respondent was trying to get rid of
lumpers," and then added: "I probably said to Mr. Martin,
'after all these years I have been an asset to this company
and this obviously is an effort to eliminate me .... ' That
was in reference to the overall picture."
Frost admitted that he and his "partner," Maura, each
morning "organized" the work for the day. He testified that
with respect to truckdrivers. whom he did not know and
whom he referred to as "strangers," he would telephone the
union hiring hall and arrange for "casual" lumpers to he
dispatched from the union hall to unload the trucks of such
drivers, or in the parlance of Frost "to work these trucks."
Frost explained when these casual lumpers arrived, they
were assigned to work on the trucks of such "stranger" driv-
ers. It appears that Frost only worked his "own" trucks
exclusively, that is, those that were his regular customers
and known by him over the 14 years he had been a lumper
on Lucky's unloading dock. In fact, at such times as he
needed a helper, those truckdrivers who were his regular
customers would pay Frost for the services of him and also
his helper when the job required one.
In a situation where he regularly unloaded a company's
trucks, there was an arrangement whereby the truckers paid
Frost's lumpers' fees to Lucky, who, in turn, paid Frost.
This arrangement applied only to regular customers of the
resident lumpers.
Frost took his vacations at such times as he pleased to do
so. When he was on vacation, his partner. Moura. had the
union hiring hall dispatch a casual lumper to fill in during
Frost's absence. The casual lumper, added Frost, was under
the supervision of Moura, who, like Frost. was a resident
lumper and a steward appointed by Teamsters Local 70.
After the lumpers were ordered off Lucky's premises,
they stationed themselves outside Respondent's gate and as
truck drivers making deliveries to the distributing center
approached the gate, they stopped their trucks where the
lumpers congregated to select one. The lumpers entered the
cabs of the trucks seating themselves alongside the drivers
who then drove onto Respondent's premises. Once the
truck had been backed up to the dock, the lumper began
unloading the truck. Frost explained that after May 21. the
truckers with whom he had regularly worked in the past
and who "preferred" to employ him when he worked on
Lucky's unloading platform, were the same truck drivers
and trucking companies whose trucks he would board out-
side the gate and once inside Respondent's premises, would
unload at the dock. It appears Frost suffered no monetary
loss after he solicited work off Respondent's property.
When asked on cross-examination whether his affidavit
given to a Board agent which stated, "Lucky employees or
supervisors never told me which trucks to work," was true,
Frost answered in the affirmative. He also acknowledged
that during the many years he worked on Lucky's premises,
none of Respondent's supervisors told him or other resident
lumpers how to unload the trucks and that this also applied
to the casual lumpers, who he requested the union hall to
dispatch when there were not a sufficient number of regular
resident lumpers available to unload waiting trucks. He
worked, after May 21, in this manner until February 1977,
when he voluntarily left.
Edward H. Painter. business agent of Teamsters Local 70
for II ears, handled the Union's matters from May 1975
to July 1976. involving its members employed by Respon-
dent at its distribution center. Between November 1975 and
May 1976. he discussed various unioh matters with Martin,
Respondent's industrial relations manager. On direct-ex-
amination by the General Counsel's representative, Painter
was asked whether at any time. Martin threatened "to limit
the lumpers' access to Lucky's distribution center." Painter
answered in the negative.
Painter then testified with respect to Friday. May 21.
1976, when an Associated Company truck was on Respon-
dent's premises. Ambulatory pickets of ocal 70 were out-
side the exit gate located at the premises of Respondent's
distribution center. On that day he received a telephone call
from a Lucky driver "whose name he did not recall" that
they had a problem out there. Painter arrived there 15 to 20
minutes later at approximately noon. He "observed two
pickets picketing on Lucky's property line outside the gate
with a sign reading 'Associated Freight Lines unfair to Lo-
cal 70.' " He approached them and asked what was going
on. One of the pickets told him "there was an Associated
truck that came into [Lucky's] property." and that the truck
was parked some distance beyond the entrance gate. Paint-
er disclaimed any prior knowledge of this picketing stating
that "the Associated Freight strike was under the direction
of Dick Durosetle, a business agent of Local 70. He was the
one who assigned the pickets at Associated's terminal and
they would follow the [Associated's] trucks."
Painter's testimony continues that, after questioning the
pickets, he saw Respondent's officials Martin, Haas, and
Poole standing nearby and proceeded to where they were
standing. "I went over to Mr. Martin who was the man I
normally dealt with when we had problems, such as we had
at that time .... I recall he said, I'll give you two or three
minutes to get those pickets off the gate or I'm going to fire
those [.uckj drivers."' Painter described the confronta-
tion with Martin as one in which he "tried to calm him
down. Then after I was there a little while and I did not
make an effort to remove the pickets, he said. 'All the lump-
ers are going to go out.' " Painter testified that he asked
Martin what was the purpose of kicking the lumpers off the
property, stating that he told him the lumpers had nothing
to do with the picketing, as it was a dispute with Associated
Freight Lines. Martin replied, according to Painter, that
"kicking the lumpers off the property" was related to Lucky
stores, as the strike at Associated Foods was related to
Lucky Stores. "And I said to him then, 'Well it looks to me
like this was done in retaliation,' and he said. 'I wouldn't
use that word.'"
Later, still on direct-examination, the General Counsel
asked Painter if he had a conversation at the same time
described above with either Haas or Poole and Painter re-
plied: "I recall after talking to Mr. Martin [that] Mr. Dick
Haas made the statement the lumpers were going to go out.
He also said the same thing Martin said .... The lumpers
13 Painter was conversing with Martin near the gate at a time when Luck)
drivers. members of .ocal 70, were lined up, single file. in their loaded trucks
with deliveries for t.ucky's retail grocery stores. but they refused to exit
through the gate as it meant crossing their union's picket line.
654
LUCKY STORES. INC.
were going to go out." After the pickets left. Painter testi-
fied he had another conversation on Lucky's premises the
same day (May 21). with Haas who, according to Painter.
said: "I want you to know we have no more resident lump-
ers."
Painter continued: "I looked back toward where the driv-
ers were, and, you know I didn't see any trucks there origi-
nally, but later on, I did, when he said something about the
drivers, I seen them Lucky drivers back there so I went
back to talk to them [Lucky] truck drivers back there . . .
[who were inside the gate]. When I went back to where the
drivers were, I seen the Associated truck sitting in the right-
hand lane, the lane that would have been driving in past the
gate .... I talked with some of the ILucky] drivers. I walked
over to the Associated truck and I talked with Ron Lopes,
one of Local 70's stewards there. He was trying to get the
Associated driver to get the truck off the property so they
would not have any' problem. So I believe he was finally
successful in doing that because after the truck left, the
problem was all gone."
Painter's testimony continued: "Then I made a phone
call and [Martini said something to me about. "'his is not
going to help the relationship between Local 70 and l.ucky
Stores,' and there was some more discussion, and I would
describe it as being a sort of heated discussion." Painter
testified that he then departed.
Painter also testified about another conversation that he
had with Haas the following month in June. Painter testi-
fied he initiated the conversation: "I asked Haas a question
about the lumpers and how we were going to work by get-
ting the lumpers back to their previous status, and he told
me, if we would keep the pickets off the gate, we would not
have any trouble with lumpers."
On cross-examination, it was elicited from Painter that
Chuck Mack, secretary-treasurer of Local 70, wrote to Mar-
tin on May 20, in answer to a letter from Respondent, with
respect to picketing of outside trucks at the Lucky Store
complex in San Leandro involving a truck belonging to the
Associated Freight Company with whom the Union had a
labor dispute. Respondent had suggested. in the event a
truck drove onto Respondent's premises to make a delivery.
that the Union would be allowed to picket the truck at the
site where it was parked within the distribution center. It
this procedure were adopted instead of picketing at the gate
entrance, Lucky official Martin stated, it would not inter-
fere with its trucks either entering or exiting through the
gate and thus not interfere with its trucks delivering food
products to its retail stores. Local 70's response reads as
follows:
As you know, Local 70 may have occasion to picket
different trucks from time to time for various reasons.
When that truck comes into the complex, the question
arises where to picket that truck---at the gate-or
where the truck is in the complex.
We understand Lucky Stores desires we picket in the
complex and not at the gate.
We are willing to agree with this proposal if we can
work out a written agreement that our picket on your
property will be held harmless from any damages that
may result and that he be protected from physical
abuse.
We propose you work the details for a written agree-
ment with our legal council, Duane Beeson. who is
swith the law firm of Brundage. Beeson. Taer & Ko-
vach. I() Bush Street. Suite 1500. San Francisco.'
When Painter was asked whether the pickets at the gate
entrance on May 21 were informed by Martin that thes
could picket the truck with whom the Linin had a labor
dispute on Lucky's premises instead of at the gate entrance,
Painter replied in the negatie. lie also denied that when he
arrived at Lucky's premises about noon on May 21. and
spoke to Martin. that he knew Lucks's drivers were retusing
to drive their trucks across Local 70's picket line at the gate
although there was a lineup of such trucks beginning near
the picketed gate which were waiting to exit in order to
make deliveries consigned to Lucky grocery stores. nder
further questioning by counsel for Respondent. Painter di-
luted his denial stating: "I don't think I was [awarej. You
know, it's over a year ago and I'm a little cloudy . but it's
possible I did know Lucky drivers were back there .... "
When he said to me "Get those pickets oftt or I'll tire those
drivers . . . I assumed the drivers were involved."
When he was then asked on cross-examnination. inasmuch
as he knew that Lucky's drivers were not driving their
loaded delivery trucks through the picket line, whether he
instructed them it was permissible for them to do so, hlie
answered he did not although he admitted he mats have told
Martin that. if he removed the Associated truck froim
Lucky's premises. his {Union's picket line across the gate
would be disbanded and withdrawn. When asked it he ad-
vised l.uck's truckdrlxers. who were backed tip Inl i line
waiting to exit in order to make deliveries to Respondent's
grocery stores, that this was a dispute between Associated
Freight Lines and Local 70 and did not inole Lucky
Stores and was. therefore, permissible for them to exit
through the picket line established by Local 70 at the gate.
Painter replied: "No. I did not tell them that .... I told
them that that was a legal picket line at the gate and it was
up to them as an individual whether they wanted to go
through or not to go through." Painter admitted. however.
that Associated Freight l.ines then had a terminal in San
Francisco which was being picketed by l.ocal 70.
Reference was then made to Respondent's Exhibit 5 and
Painter was asked on cross-examination what it meant. liHe
answered: "Luck\ Stores wanted us to picket Associated
trucks whenever their trucks might be on the complex
[Ilucky's distribution center] rather than [ocal 70] to picket
their gate." Painter added: "We did not want to get put in
the position we would give up our right to picket either at
the position of the [Associated] truck [on the Lucky prem-
ises] or at the gate . . . . In the past, we have had a right to
protest the truck on the property or at the gate. at either
location." See Respondent's Exhibit 6.
George Allen was called as a witness on behalf of the
General Counsel. He has been employed b Respondent
approximately 4 ears on its "produce and deli warehouse
dock." a part of its distribution center. His duties consist of
" See Resp Exh and 6
655
DECISIONS ()F NATIONAl. IABOR RELATIONS BOARD
"putting up packages going to various stores in Lucky's
system." liec is a member of Local 70 and is also Local 70's
shop steward n the produce dock. Hie attended a meeting
in June 1976, at the distribution center in Haas' office, su-
perintendent of the center. Also present was Painter. Allen
testified that Haas told Painter: "'If it wasn't for you and
the pickets, the lumpers'-and then he stopped, he said,
'well forget about that. That's not what we are here for.'"
Respondent's Testimony
John H. Martin, industrial relations manager since 1970
fior the Northern C(alifornia Region of Lucky's Stores, is a
graduate of the University of Notre Dame, an attorney, and
a member of the California Bar. He has also been a labor
attorney associated with the United States Steel Corpora-
tion. Kaiser Steel Corporation. and the Borden Company.
Martin testified that early in May 1976, prior to the Asso-
ciated Trucking Lines incident detailed supra, Respondent's
olficials had decided to withdraw its permission for the resi-
dent lumpers to continue plying their trade on the grocery
dock located at Lucky's distribution center in San Leandro,
Calitfornia. In addition, Martin related that the preceding
March, he had a conversation with Frost and the decision
to not permit the lumpers to solicit work on Respondent's
premises was made subsequent to that time.
Martin enumerated the individual factors whereby the
company officials, based on his decision with which they
agreed, determined to withdraw their permission for the
lumpers to remain on the property, citing lack of control
over the activities of the lumpers, and particularly as that
control as it related to public liability. Martin illustrated
what he meant by explaining that a "couple" of lumpers
had been injured on the premises in the course of unloading
trucks, one of whom sued Respondent for "public liability"
for the injuries he incurred. He expounded that under the
California Employees Compensation law, Respondent's li-
ability was monetarily limited by the provisions of that stat-
ute, but liability was "virtually unlimited" in the case of
"public liability" involving injuries to nonemployees. In
such situations, Martin explicated, there were problems "in
identifying for liability purposes which trucker the lumpers
were working for at any particular time" as it was difficult
for Respondent because of lack of control over the lumpers
to determine their mode of operations due to the manner in
which they solicited the drivers. Martin indicated that com-
pounding and further complicating this perplexing and puz-
zling problem was the undeniable fact that a single lumper
"oftentimes work[ed] for two and sometimes three trucks
simultaneously."
Another consideration for banning lumpers from solicit-
ing on its grocery and produce unloading platforms or
docks located on its premises, continued Martin, was "a
couple of incidents [occurring] over the years involving mis-
conduct of lumpers, and as far as I was concerned from
years back they were better off the property." In one inci-
dent the man, apparently inebriated, urinated all over the
warehouse. Another incident was a Lucky employee work-
ing on the dock being "beat up" by a lumper. A third inci-
dent involved a resident lumper, while on the premises, at-
tempting to "punch" a security guard." Martin, in
enumerating his reasons for withdrawing permission for the
lumpers to solicit truckers while on Lucky's unloading
docks, emphasized that the lumpers are not employees of
Respondent, stressing that Lucky Stores has no control over
them.
This recurrent situation eventually culminated in Re-
spondent, freight companies, and individual truckers receiv-
ing identical letters dated October 3. 1975, from the Inter-
state Commerce Commission with respect to the soliciting
or receiving of concessions, constituting a violation of their
Act. (Resp. Exh. I) As Martin explained the purport and
significance of the ICC's letter: "They felt allowing lumpers
to be resident on our property was receiving a rebate in
violation of the Interstate Commerce Act, wherein, in some
cases the services of the lumper were not charged to our-
selves." Such charges were borne by those truckers deliver-
ing consignments to Respondent's distribution center.
In January 1976. Martin attended a meeting of various
members of the trucking industry in Northern Califobrnia, at
which an address was delivered by Commissioner Bell of
the California Public Utility Commission. He explained, ac-
cording to Martin, "what the Commission felt were the vio-
lations: he told us ... they would begin prosecution of the
companies who were then doing this within 60 to 90 days
time." Martin added that on subsequent occasions and at
meetings the California Public Commission "reinforced" its
intention to prosecute. However, in March 1976, there was
another meeting, at which a California Utilities official an-
nounced that the prosecution had been delayed because of
the appointment of a new chairman of the Commission.
Martin testified that prior to May, the Federal Bureau of
Investigation periodically appeared on Respondent's docks
and receiving platforms where trucks unloaded fbood prod-
ucts consigned to it. He explained that the primar) reason
for the FBI agents appearing on various occasions on their
dock was to investigate complaints of interstate truckers,
particularly individuals who "objected]" to being com-
pelled to hire lumpers to unload their trucks. Martin added
that he had occasion during the month of February to call
upon the FBI for help in a grocery unloading dock situation
which involved the conduct of lumpers.
With respect to piece rate lumpers, that is, lumpers who
are paid by the piece as distinct from grocery lumpers paid
by the hour, Martin was asked on his direct examination
whether there was any development in that regard, prior to
the Associated truck picketing incident, to continue "toler-
ating" them and which influenced Respondent's decision to
withdraw permission from the lumpers to avail themselves
of soliciting truckers on the premises as they prepared to
unload at Lucky's docks. Martin answered in the affirma-
tive, explaining that "several years ago" the minimum rate
tariff, MRTA for California, was changed by the State Pub-
lic Utilities Commission, resulting in the fee for a piece rate
lumper being charged directly to the consigner, which
meant Respondent paid the lumpers' unloading fee. "That
produced," stated Martin, "an enormous increase in freight
costs to our company for the items handled by the piece-
5 Martin stated a "resident lumper" is one who appears at L.ucky's prem-
ises with "regularity as opposed to someone who appears irregularly."
656
I.UCKY SIORES, INC'
rate lumpers. In the earls spring of 1976. we were informed
that the [('alitornial Public Utilities Commission was con-
sidering an order drafted b their staff to add, in essence, a
45 percent surcharge to this already high rate and that.
again. would be passed directly on to the debtor" [Lucky
Stores. the receiver of the oods.
Regarding the Del Monte Corporation matter, referred
to above at pages 3 and 4. Martin explained that this writ-
ing (Resp. Exh. 2) which he learned of on September 12.
1975, was an interoffice memorandum whereby the Inter-
state Commerce Commission auditors had looked to Del
Monte to bill customers for lumper charges incurred in the
shipment of their goods. Martin testified that the signif-
icance of the Del Monte memorandum was an indication to
him that the truckers would pass on the lumpers' unloading
fee to the consignee resulting in additional shipment costs
and freight rates for Respondent. This was another reason.
testified Martin, which ultimately entered into his decision
to withdraw permission for the lumpers to remain on
Lucky's property.
Martin next testified with respect to the Associated truck
incident, supra., and its accompanying ambulatory picketing
at one of their gates by Local 70's pickets. Martin stated he
first became aware of this "When I received notice that the
distribution center was shut down .... I proceeded to the
Merced Street gate." This, according to Martin. is the gate
out of which all Respondent's trucks exit from its distribu-
tion center. There is another gate, some distance from the
Merced gate, called the Fairview gate, Martin testified,
which is the gate used by other truckers who are arriving to
deliver food products consigned to Lucky and which, prior
to May 21, were unloaded by the lumpers who were then
stationed on the dock. Martin stated that Lucky's trucks
delivering groceries to their retail grocery stores do not exit
"at all" through the Merced gate where the picket line was
established by the Union on May 21, but through the Fair-
view gate. After May 21, when the lumpers were not al-
lowed to station themselves within the distribution center
premises, they moved outside and solicited truckers deliver-
ing groceries, meats, vegetables, fruit, etc.. to Respondent's
warehouses as they approached the gate. Prior to being re-
moved the lumpers were located on the various unloading
docks: the hourly-rated lumpers on the grocery dock and
the piece rated lumpers on other docks. After May 21. the
"hourly rate" grocery lumpers stood outside the Fairview
gate soliciting incoming truckers who were about to enter
the distribution center to unload their cargo at the various
receiving docks. The record is not clear with respect to the
piece-rate lumpers' location after May 21. when they were
restricted to soliciting truckers off Respondent's premises.
Martin resumed his recital of the happenings on Friday,
May 21, when he was summoned to the Merced gate. He
testified that he saw two pickets walking on the outisde of
the open gate alongside Respondent's property line. Inside
the gate, he continued, were "three sets of doubles of Lucky
trucks" and additional Lucky trucks backed up in single
file, one behind the other. The Associated truck. he contin-
ued, was parked inside the gate on Lucky's premises "be-
tween the dairy building and the Merced gate .... At least
300 feet from the property line." Martin talked to one of the
pickets, asking him "what he was doing there," to which the
picket answered, "my business agent told me to picket the
gate." Martin said. "'We ha\e procedures iound here that
you picket the disputed truck when ou hase a problem."
tie said, "No my business agent told me to picket tile gate."
By procedures. Martin explained. "1 mean a practice of
long standing that a disputed truck ow ned bs soincoe with
whom Local 70 had a labor dispute which canme onto
Lucky's property,. would he picketed at the location of the
truck" on Lucky's property. but not the gate. Martin
added: "I have spoken to representaties of I.ocal 7). in-
cluding the secretary-treasurer mans times .... In lact,
Local 70 has f'ollowed that procedure in the past." Ilc testi-
fied that he "specifically told the picket he was insited to go
on the [Respondent's] property and picket the Associated
truck, which at this time was in plain ,ieu ." Thus, ex-
plained Martin, if the pickets had accepted h in itatiton to
limit their picketing to the Associlatedl truck 'ushere It as
parked inside the gate, the nion pickets would not have
blocked the gate for the Lucky drivers. members of local
70. who were trying to exit from the distribtion center's
Merced gate in order to make their delixeries to Respon-
dent's stores.
Later, Martin spoke to Painter, Local 70's business agent.
near the Merced gate. Again, according to Martin, he told
Painter "the procedures" which Respondent had with the
Union could solve this problem, explaining as he hail to the
pickets, and asked Painter: "to get the picket line out oft'
there . . . out of the driveway. blocking the l.uck3 trucks.
Painter said 'If you get that Associated truck out of here,
you won't have any problem.'" Martin testified that he
walked away from Painter.
Finally', the driver of the Associated truck drove it off
Respondent's premises, whereupon the pickets got into
their two autos and followed the truck. Immediately there-
after, the immobilized Lucky trucks then proceeded
through the gate to make their deliveries.
In ending this phase of his testimony. Martin, when
asked by Respondent's counsel whether he and Painter had
any conversation about lumpers during this gate incident.
answered: "None whatsoever." He also testified that during
the time the picketing was going on. while the Associated
truck was on Respondent's premises and up until the time it
left and was followed by the pickets in their two autos, the
lumpers were taking "no role" whatsoever.
After the Associated truck had left followed by the pick-
ets and the Lucky trucks had also departed to make their
deliveries, Martin testified he walked over to where Painter
was speaking to a "group of our employees" and told him,
"that lumpers would no longer be allowed on the property.
to stay on the property. They could go and come and go
with the trucks, but they would not be allowed on the prop-
erty. Then I [Martin] told Mr. Poole, who carries a radio on
his belt, to contact his supervisors, to radio the supervisors.
and to tell them to put the lumpers off the property."
"Sometime" after the piece-rate lumpers were put off Re-
spondent's property, they were allowed to return and to
solicit truckers on the produce dock inside Lucky's premises
as they had before May 21. Later on. however, according to
Martin. the piece rate lumpers were allowed on the produce
dock "ior a short time. However. in the majority of the
time, both piece-rate and hourly rate lumpers come and go
with the trucks onto the property and off... as oft noes. As
h67
I)6(. ISIONS ()1: NATION\L LIABOR RELATIONS BOARI)
of now, that is true of the hourly rate [grocery lumpers] and
on April IS. [19771. we made another change with the
piece-rate lumpers due to a change in the [California]
PU'."
On cross-examination. Martin testified that he and other
company officials "discussed the removal of the lumpers
many times and it was decided in early May. a date I don't
know, that that would he done when it was appropriate
with the labor relations situation." The lumper situation.
particularly their location on company property and their
unmanageable and uncontrollable conduct, he indicated.
was often under discussion by company officials from the
time be became industrial relations manager in April 1970.
Finally, in late May. at a meeting between Haas. superin-
tendent of the distribution center, Richardson, vice pres-
ident and regional manager, and Martin, a decision was
made to evict the lumpers from Respondent's property, spe-
cifically, the docks and unloading platforms of the distribu-
tion center.
After the decision was made. Martin testified, he "tried to)
find Mr. Painter, the business agent of Local 70, but he was
unavailable. We made repeated attempts to contact him; all
unsuccessful . .. we telephoned him several times. I talked
to another [business] agent I knew, asking where the hell he
was and they did not know. My secretary called repeatedly
on my behalf, and the response she finally got from one of
the girls she deals with at the [union] office was that they
didn't know where he was." Martin "speculated" that "ten
days" elapsed between the time Respondent decided the
lumpers must leave the premises and their eviction on May
21. He acknowledged he did not write a letter to Painter
during this 10-day period.
Martin, in being questioned about the Interstate Com-
merce Commission letter of October 3, 1975 (Resp. Exh. I).
agreed with the General Counsel's representative's state-
ment that its purport was that "allowing lumpers on the
premises of Lucky's distribution center amounts to an ille-
gal rebate in the eyes of the ICC." After this ICC letter was
received. testified Martin. Lucky notified the carriers and
truckers doing business with it that after January 1976.
more unloading equipment would be placed on the dock
and that any "out-side truck driver who wished to use it" to
unload his motor vehicle, could do so. This directive was
implemented by Haas, warehousing-distribution manager.
who placed additional unloading equipment for all those
using the docks.'6
Later, Martin attended a meeting in January 1976. at
which Edwin Bill, special agent of the Interstate Commerce
Commission, addressed a meeting attended by chain store
grocery officials, receivers of goods, warehouse managers,
and representatives of the trucking industry. According to
Martin, during the course of his speech. Special Agent Bill
gave his interpretation of the IC(C Act and its application,
inter aia, to the lumper situation, specifically to the role
that labor unions played in this troublesome matter. Mar-
tin's testimony follows: "He told us they were to begin
prosecutions in 60 to 90 days. and told us that a group of
6 It appears that the lumpers opposed the use of Luckss unloading equip-
ment by truck dnvers for "safet) reasons."
unions had met collectively to propose a solution to the
problem, and the unions had responded by what he [Bill]
characterized as the check mate solution to the problem
.... He mentioned for prosecution his interpretation of the
very fact of having resident lumpers on a receiver's prem-
ises amounted to an extortion of drivers, and by forcing the
trucking companies to absorb these lumper charges, it was
the receipt of a I would call it a kick back: he called it a
concession not allowable under the tariff."
On redirect-examination Martin stated that "There was
an incident involving lumpers after the January 11976]
meeting with the Interstate Commerce Commission which
prompted a call from the ICC to Luck) Stores" concerning
their hiring of lumpers.
Apropos to the lumper or unloaders matter, official no-
tice is taken by the undersigned of the document captioned,
"Hearing before the Subcommittee on General Small Busi-
ness Problems of the Committee on Small Business, House
of Representatives. Ninety-Fifth Congress. Second Session.
lion. Neal Smith. ('hairman." held on March 3. 1978.
pages 2 to 7. which is attached hereto as an "Appendix."
On October 13, 1978, the aforementioned subcommittee
submitted its "Findings and Conclusions." Report No. 95
1788, which reads at pages 24 and 25 as follows:
Accordingly, the subcommittee concludes that legis-
lation and regulatory review is needed to accomplish.
without delay, the following:
I. Relieve the consumer of the costs which are inevi-
tably imposed as a result of the exorbitant unloading
costs, violence and unnecessary delays with respect to
unloading.
2. Circumvent protracted litigation which attempts
to negate the rulings of the ICC regarding tariffs im-
posed fr unloading costs in the transportation of com-
modities through legislation which will eliminate pres-
suring truckers to violate their tariff and requiring
them to pay for a service which is supposed to be fur-
nished and fr which they must pay whatever is de-
mand. Established that a carrier is not required to ei-
ther load or unload unless the tariff so specifies and to
make it unlawful for a shipper to require that the car-
rier bear the cost of loading or unloading unless the
tariff so specifies.
3. Impose upon the operators of food terminals and
warehouses a responsibility to supervise unloaders in
the handling of commodities while on their premises
and encourage that such services be performed by their
own employees.
4. Insure that income earned bv unloaders is
brought into the mainstream of revenue collection by
the IRS.
5. Insure that laborers engaged in unloading at
docks where unloading is supposed to be furnished are
accorded the benefits of social security and worker's
compensation, in the same manner as other American
workmen and women. Incidental to this, prohibit the
issuance of false receipts in acknowledgment of work
performed in unloading these commodities.
6. Clearly indicate that laborers who are engaged to
unload perishable commodities on the premises of a
consignee or receiver and for a fee, are not automati-
658
II('KY SORES. IN('
cally the employees of the carrier, although the tariff
may specift that the trucker pass Ior unloading if he
negotiates with the shipper."
Martin was also cross-examined with respect to an inci-
dent in March 1976. when a person with a l.ocal 70 picket
sign appeared on its premises at "the receiving dock" of'
Respondent's distribution center. According to Martin.
"the incident involved a lumper. I'he truck driver refused to
hire a lumper and pickets appeared. Who theN were I don't
know."
Martin testified that on May 21, an unidentified person
told him, as he was in the cafeteria having lunch. "that the
distribution center is shut down." Accompanied bh Poole.
Martin proceeded immediately to the Merced gate. lie con-
tinued: "this is not an unusual or unprecedent occurrence.
That's where the activity will take place." lie estimated
there were approximately "sixty or so" people there. includ-
ing quite a number of Local 70 members. In answer to a
question on cross-examination, he again repeated that he
told Painter. Local 70's business agent at the time of this
occurrence: "We have procedures here. You are to picket
the truck and not the gate." See pages 13 14 above. From
the time Martin was informed of the pickets and the Asso-
ciated truck until the truck and the pickets departed. he
estimated was "probably an hour or so."
After the above-described incident on Friday. Ma 21.
Martin testified that in February 1977. those produce lump-
ers who worked the evening shift were allowed back on
Respondent's premises to solicit unloading work from
truckers in the same manner as they had before Ma) 21.
However. he continued, allowing them there was a mistake
caused by the failure of a supervisor to carry out instruc-
tions of his superior, and that this situation only lasted "un-
til some time before April" of the same year.
The General Counsel's representative also cross-exam-
ined Martin. On cross-examination, he testified with respect
to an affidavit dated August 27, 1976, which he gave to an
investigator of the National Labor Relations Board. When
asked whether on the day he signed this affidavit he had
discussed the entire incident in question in this proceeding
and the background also with the investigator, Martin an-
swered in the affirmative and added that he told the Board
agent who took his affidavit that he had expelled the lump-
ers on the basis of rumors when he heard about extortion
taking place at Safeway Stores distribution centers. Martin
qualified this statement by acknowledging that he had not
verified whether these rumors were true, but later, on redi-
rect examination, Martin testified, at some time prior to
Friday, May 21. "it had come to [hisJ attention from Safe-
way directly that they had removed resident lumpers from
their distribution centers in total."
The General Counsel's representative again referred to
Martin's affidavit in which he stated that "shortly after
May 14. 1 made the decision to no longer allow lumpers to
come onto the Lucky distribution center unless the: came
on with the trucker with whom they were to work," and he
asked whether this was correct, to which Martin replied:
17 See Davis on A4dmninisraiive La, Secs. 479. 480. 50(): Sec 7d) o, the
Administrative Procedures Al: and 324 t S 793
"Not directl . I told the Board agent that the da, I told Mr.
Painter the lumpers would not be alloaed it WAis a rida\
in MaN. and lie told me that it was the 21st. and I told hin
I could not erifyt it. I knew it as a Frida bhut the 2 1t
was a Friday. I said the decision had been made approxl-
matel a week before that time and that we were trig to
contact Mr. Painter to inform him If that." See p. 2().
When questioned hb counsel as to hether it is a correct
statement that "Luckx's position is that lumpers are em-
ployees of the truckers for whom the\ ork and not cil-
ploees of l.uck 's," Martin ansiwered: ''1 hat is correct''"
('redihilits
Jack rost has been quoted, in /hbac 'rlc. cpiolisl he-
cause the G(eneral ('ounsel's representatiles based their
case in large measure on his version of the lunipers' situ-
ation and what occurred on Ma;l 21 wahen Respondent
e, icted them from its premises. In the interests of accuriac\
his testimon has been quoted 1in 'senso.i, to avoid the ambi-
guities and impreciseness created hb paraphrasing. lhe la-
vor and nuances of Frost's use of language las incoherenIt.
unconnected, and disjointed, and not in chronological se-
quence with respect to the salient incidents to khich he
testified. is choice of language was not only equivocal. but
also subject to different impressions and interpretattionls
which are frequently incapable of translation because much
of his choice of language is such that some ol'f its rmearling is
lost so that even a metaphrase might be considered miaccu-
rate and too loose. It is believed that in some instances his
testimony was motivated by purposeful obhuscation and (ie-
liberate ambiguit\ in order to evade giving frank and credi-
ble answers.
Whenever the testimony of Painter and Marlin contra-
dicts one another. Martin's version is credited.
Conclusions
Uinder the comallon law test a i orker is an emploxee it'
the person for whom he works has the right to direct and
control him in the was he works both as to the final results
and as to the details of ,ihen. where. and how the work is to
be done. The emploecr need not actually exercise control. It
is sufficient that he has the right to do so.
The first case in which the Board gave substantial consid-
eration to the question of defining the word "emploee"
within the meaning of Section 2(3) of the Act was in Stein-
herg & C(o,nam., 78 NLRB 211, 220 221 1 948). where the
Board majorit_ stated:
Although Section 2(3) does not purport to define ex-
plicitls the terms "employee" or "independent contrac-
tor." it is clear from the legislative histor, that ('on-
gress intended to give these terms their consentional
meanings and that the Board. in determining coverage
under the Act, should follow the "ordinary tests of the
law of agenc ." Apparently. the test thus contemplated
is the familiar "right-otf-control test" which the courts
appl, in a variet\ of situations to differentiate between
an emploee and an independent contractor. nder
this doctrine it has been generall recognized that an
emnplo!er-emplo\ee relatioiship exists here the per-
6'9
DI)FlCISIONS OF NATIONAL LABOR RELATIONS BOARD
son for whom the services are performed reserves the
right to control the manner and means by which the
result is accomplished. Conversely, an employer-in-
dependent contractor relationship exists where the
control is merely limited to the result to be accom-
plished and does not apply to the method and manner
of the services rendered.
As to the criteria to be used in determining the nature of
the relationship, the Board enunciated the following indicia
in its Steinberg Decision at page 221:
Among the many factors which have usually been
considered relevant to the question of control are the
following: the right to hire and discharge: the perma-
nence of the relationship: whether the work is part of
the employer's regular business; the extent of control
which, by agreement, the employer may exercise over
the details of the work; the method and determination
of the amount of compensation: the skill required in
the particular occupation; who furnishes the tools, ma-
terials, and place of work and who has control of the
premises where the work is done: whether the person
doing the work is engaged in an independent business
or enterprise, and particularly whether he stands to
make a profit on the work of those working under him:
the length of time for which the person is employed:
and the parties' belief as to the nature of the relation-
ship created. Plainly, no one factor is controlling; nor
is the list complete. The character of the relationship is
to be appraised by the presence or absence of no single
evidentiary factor. but by an overall view. Plainly,
each case must depend on its own facts.
Thus, the "right-of-control test" has repeatedly been used
to determine if an employer-employee relationship exists.
See, generally: Citizeq News Compantv, Inc., 97 NL.RB 428
(1951): Golden Age Da'lton Corp., 124 NLRB 916 (1959):
Pure Seal Dairv Co., 135 NLRB 76 (1962); T'on Trucking,
Inc., 192 NLRB 764 (1971): and Dixie Transport Co., 218
NLRB 1243 (1975).
In N. L. R. B. v. United Insurance Company ofA merica, 390
U.S. 254. 256 (1968), the court considered this issue and.
without specific references to the right-of-control test, found
that the purpose of the Congressional language excluding
independent contractors from the Act "was to have the
Board and the courts apply the general agency principles in
distinguishing between employees and independent con-
tractors under the Act." The court went on to note at 258:
In such a situation as this there is no shorthand for-
mula or magic phrase that can be applied to find the
answer, but all of the incidents of the relationship must
be assessed and weighed with no one factor being deci-
sive. What is important is that the total factual content
is assessed in light of pertinent common-law agency
principles.
In Standard Oil Company of Ohio, 230 NLRB 967. 968
(1977), a Board panel, noting that the Court in United In-
surance Company, supra, appeared to prefer to use the spe-
cific considerations frequently associated with the right-of-
control rest rather than the test itself. attempted to clarify'
the criteria to be used by the Board:
Among factors considered significant at common law
in connection with the right to control test in determin-
ing whether an employment relationship exists are (I)
whether individuals perform functions that are an es-
sential part of the Company's normal operation or op-
erate an independent business: (2) whether they have a
permanent working arrangement with the C'ompany
which will ordinarily continue as long as performance
is satisfactory: (3) whether they do business in the
Company's name with assistance and guidance from
the Company's personnel and ordinarily sell only the
Company's products: (4) whether the agreement which
contains the terms and conditions under which they
operate is promulgated and changed unilaterally by
the Company: (5) whether they account to the Com-
pany for the funds they collect under a regular report-
ing procedure prescribed by the Company: (6) whether
particular skills are required for the operations subject
to the contract: (7) whether they have a proprietary
interest in the work in which they are engaged: and (8)
whether they have the opportunity to make decisions
which involve risks taken by the independent business-
man which may result in profit or loss.
The Board recently summarized the state of the law on
this question in Young & Rubicaam International, 226 NLRB
1271 (1976):
The Act excludes from the definition of "employee"
any individual having the status of an independent
contractor. A significant criterion in determining
whether an individual is an independent contractor
rather than an employee is the common law right-of-
control test. Generally. where the person for whom the
services are performed retains the right to control the
manner and means by which the result is to be accom-
plished, the relationship is one of employment. On the
other hand, where control is reserved only as to the
result sought, the relationship is that of independent
contractor. The resolution of this question depends on
the facts of each case and the Board follows the ordi-
nary tests of the law of agency in determining whether
individuals are covered by the Act.
Thus, it would appear that the factors of both the right-
of-control test and general agency law can be used in deter-
mining whether an employer-employee relationship exists.
The record facts found in this case. supra. and the appli-
cation of the above standards promulgated in the Board
and court decisions cited above, have been considered
along with the following factors in determining whether in
the case at bar the lumpers or unloaders are employees
within the meaning of Section 2(3) of the Act: Do they
individually determine their compensation through negotia-
tions with the truckdriver who owns the truck or with com-
panies, common carriers. or freight lines, as the case may
be; are their total earnings determined by their success and
skill at such negotiations: do they report their earnings to
Respondent or the trucking firms: are they formally hired
or carried on the personnel rolls of Respondent or any of'
the companies: do they receive benefits such as vacation,
holida and sick pay. group insurance, and pensions, as do
other emploees of the carriers or Respondent: have an,
660
LII(KY SORES, INC
payroll deductions been taken from their pa b Respon-
dent or the trucking companies: do the lumpers determine
if and when the' report for work and depart from work: do
the, determine if the 5 are going to work for different em-
ployers on a day-to-day basis: do they iew themselves as
permanent employees of l.ucky or the various trucking
companies or the individual trucker who owns and operates
his own motor vehicle: can the lumpers determine if they
wish to hire helpers and the wages to he paid them: are they
an essential part of Respondent's Lucks's or the trucking
companies' businesses: do the5 operate under some form of
agreement with the trucking companies and l.ucky and
whether it can be changed unilaterally by the companies or
individual truckers: do the lumpers receive direction. assist-
ance, and guidance from Lucky or trucking firm employees
or individual owner-operators concerning the unloading of
the trucks and are these lumpers considered by Respondent
Lucky or the trucking firms to he their permanent employ-
ees.
While the Board has not dealt specifically with lumpers
as employees, it has on other occasions considered whether
individuals engaged in unloading activities are employees
under the Act. In a series of cases, El Monte Hay Market,
Inc.. 173 NLRB 1140 (1968): D. . Mudd, ,nc.. 173 NLRB
1142 (1968): and Qualit Hay Conipany, 173 NLRB 1144
(1969): the Board considered. inter alia, whether persons
engaged in the unloading of hay were employees under the
Act.
The facts were similar in the three cases cited immedi-
ately above. The unloaders were usually contacted by the
hay haulers who were enployees, either by telephone or at
the truck weigh stations, and were engaged on a load-by-
load basis. Once engaged to do the job. the unloader ac-
companied the hauler to the site where the hay was to be
unloaded. The hauler generally paid the unloader in cash.
If paid by the employer. the owner of the hay. the amount
was deducted from the hauler's pay. No payroll deductions.
taxes. social security payments. or group insurance deduc-
tions were taken from the unloaders' pay. The employers
did not place the unloaders on their records and in most
cases did not know the identities of those doing work.
Representative of the Board's findings in these cases is
this declaration from D. L. Mudd, Inc., supra:
These facts do not support a finding that the unloaders
are employees of the Employer. Thus, although two of
them spend a majority of their time unloading the Em-
ployer's hay, they do similar work for others. Each
unloader has a considerable investment in his own
equipment, for which he is solely responsible. The un-
loaders offer their services to. and are hired on an ad
hoc basis by the haulers from whom they receive their
pay. As they are not on the Employer's payroll, no
deductions are taken from their pay. They do not re-
ceive from the Employer benefits such as holiday pay
and Christmas bonuses as do the haulers.
In a more recent case decided in 1977. P. Q. Beef Proces-
sors. Inc.., 231 NLRB 1076, a Board panel majority (Mem-
bers Murphy and Walther with Member Jenkins dissenting)
agreed with the conclusion of an Administrative Law Judge
as to the status of an individual engaged in the unloading of
truckloads of beet supplies at a meat processing plant who
held:
I also conclude that Durham was not an emploee of
Respondent within the meaning of the Act but. rather.
an independent contractor. Durham's wages either di-
rectl., or through a reimbursement arrangement. were
paid hb suppliers, not hb Respondent. Such pamelnts
were not reduced bh paroll deductions. lie hired his
own helper, set the amount of that emplox ee's remu-
neration, and purchased his own eqlipment. Like
other unloaders Durham was not t;ormall hired. hut
simpl, reported when work x as aailable. and re-
ceived remuneration based upon the number of
pounds unloaded. Pernas [the supervisor] concerned
himself with the manner in which Durham performed
his work only to the extent of demanding that the un-
loading process he accomplished in a swift fashion."
It should be noted that neither the Administrative law
Judge nor the Board panel maoritx specifically mentioned
the right of control test and the general agenct principles of
Standard Oil of Ohio, supra. in reaching their decisions in
P. Q. Beef Proce.ssors. It appears that the Board anti the
Administrative Law Judge preferred to take an overall view
of the facts rather than use the right of control test or the
general agency principles as discussed above. However
many of the factors mentioned in the decision are compati-
hle with the criteria outlined in Steinberg & Conipan.li u-
pra. Because of the similarity between the factual situations
of the instant case and the "unloader cases" discussed
above, it would seem based on vtare decisis, a revered
axiom, the very foundation of jurisprudence. that a similar
approach be used rather than the other standards.
In that regard, the facts of' the instant case are compati-
ble to those in the "unloader" cases. particularly P. Q Bee/
Processors. .upra. and would seem to support the conclu-
sion that the lumpers are not employees under the Act."
The "hay unloader" cases can be distinguished somewhat
in that the work is not performed on the employer's prem-
ises as with the lumpers and the has unloaders have con-
siderable investments in equipment which the lumpers do
not. However. looking at the total factual content, and ap-
plying the indicia enumerated above. it seems reasonable to
conclude other factors discussed supra. outweigh these con-
siderations and that the lumpers are not employees under
and within the meaning of Section 2(3) of the Act. There-
fore, the lumpers are not employees under Section 2(3) of
the Act. This determination would be the same regardless
of the standard used: although, the cases discussed above.
which are referred to as the "unloader cases." provide the
best guidance and authority upon which to base this con-
clusion.
On the contrary. the fact that no withdrawals were made
by Respondent for social security payments. Internal Rev-
8 The Administrative l.as. Judge cited QualmI Haill (rpai'. epra. ia
authorits for his holding.
' In P Q BeeJ Prix-essrs. supr,.. with respect 1to the purchase ol the
equipment hb the unloader it should he noted that the nsestmentl as oit i
minimal nature (a "rail" or cart to a3sisit n Ihe unloading tof heal\ cuts of
meat) and. therefore. is not considered to he an appropriate hasis to dstin
guish it flrom Ihe instant case
h661l
6I)6(CISIONS O()F NA IONAL LABOR REI.\TIONS BOARI)
enue Service tax withdrasals, check-oil' for union dues. as
well as no provisions lor vacations. sick leave. hospitaliza-
tion. medical payments, and the complete lack of control
over the lumpers manner of working in unloading trucks,
evidences that the lumpers were independent contractors.
[Recommended Order for dismissal omitted from publi-
cation.]
AP'PEN I)Il X
TESTIMONY OFI LEWIS R. TEEPIE, ASSISTANT I)I-
RECTOR, BUREAU OF INVESTIGATIONS AND EN-
FORCEMENT, INTERSTATE COMMERCE COMMIS-
SION: ACCOMPANIED BY EDWIN BILL.. SPECIAI
AGENT. See page 21, lines 12 to 19. supra.
Mr. TEEPLE. We are grateful to have this opportunity
to speak before your subcommittee.
I would like to state that I am not the ommission
spokesman and my testimony will not express any official
position of the Commission. My testimony is based on per-
sonal experience over the years in dealing with motor carri-
ers and persons employed in the motor carrier and shipper
industries.
I became interested in what is referred to as the "lumper
situation" approximately 10 years ago. There were four or
five truckers who came to my office and gave me a descrip-
tion of the unloading practices that were going on at places
where they were unloading their trucks.
They described to me how they and/or their drivers were
forced to pay unloading fees at various places, such as the
docks, produce markets, meat packinghouses, large grocery
stores, and almost every place where large amounts of
goods were received by truck.
They explained to me that they were forced to pay a
fee-at that time usually $40 to $50 or else they would
suffer various problems, such as long delays in getting their
trucks unloaded; slashed tires: various abuses to the equip-
ment; in some instances, violent treatment of their drivers.
At that time. I asked this group if they would be able to
give me some documents which would substantiate these
stories, and they said that they could but had some reserva-
tions about it being known that they were the persons re-
porting it to the Commission for fear of retaliation against
them, their employees, or their equipment.
I assured them that I would keep in confidence any infor-
mation that they provided me. They left my office, and they
have never returned to this date with any documents nor
have they made any contact with my office.
My efforts to contact those persons were limited to a few
phone calls; however, I was not successful in making con-
tact with anyone who would come forward at that time
with any information.
Since that time, I have been in contact with truckers and
drivers who have described identical situations. From my
contacts with these drivers and truck owners and from my
own observations of the unloading practices, it is my opin-
ion that the lumper or swamper situation is widespread.
ranging from coast to coast and existing in almost every
phase of truck transportation.
It is my further opinion that it has become such a nation-
wide practice that it is fairly well accepted. Even though
drivers may be ready and willing to perfdrm the unloading.
the practice of' preventing them from doing so is so routine
that the drivers offer no resistance for fear of receiving some
type of repercussion.
Even if' drivers were able to resist coercion. many times
they are transporting perishable products and the loss of'
productive time would cost them much more than the
lumper fee that they are being charged. So it is pretty well
becoming a practice for drivers to pay without any resist-
a nce.
The persons who are perlorming the unloading, in my
experience have always required that they he paid in cash. I
can only assume that they' don't have to report it as income
nor do they pay any social security taxes. I have been told
that many of them use false identities. The Commission's
staff has. in the past, conducted investigations into the op-
erations of' motor carriers and discovered that lumper fees
were being paid.
We have, in the past, turned over to the FBI leads which
would indicate that extortion practices were taking place in
the unloading practices. The FBI conducted an extensive
investigation of the lumping situation in the San Francisco
area, and the cases were not prosecuted.
We asked the FBI to furnish us with copies of their re-
port.
While I am fully aware there is a need for persons to
perform unloading of trucks, we now have a situation exist-
ing in which the truckers or their drivers are unable to con-
trol the level of charges and are being required or forced to
pay exorbitant amounts in order to have the unloading ac-
complished.
Many of the commodities that are moving in today's ve-
hicles are loaded on pallets and can be unloaded very
quickly with a forklift. In instances where the goods are on
pallets. the vehicles can be unloaded in a very short time.
using the shippers' forklifts: and it is my understanding
that, even when the goods can be unloaded quickly with
forklifts. the charges remain the same.
Mr. TEEPLE. I brought with me Mr. Ed Bill, from our
San Francisco office, who has been, just yesterday and the
day before, investigating some lumping practices. I would
like to have him speak to you now if that is all right.
Mr. SMITH. Very good.
Mr. BILL, you may proceed.
Mr. BILL. Approximately 1-1/2 years ago I began an
investigation into the loading and unloading practices in
the San Francisco Bay area.
During that time I became well aware that there is a
large amount of violence associated with these practices.
particularly if an independent trucker refuses to pay or hire
these unloaders. He is then subjected to physical abuse, his
equipment gets damaged. tires get cut, and frequently he
lays over in town 2 or 3 days and misses an outbound load,
which is expensive.
At that time, due to possible violence, we turned over our
investigation to the local office of the FBI who have been
conducting investigations up until, I believe. November or
December of' 1977.
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L.UCKY SIORES. IN(C.
At that point in time the! ads ised us they wotIld not seek
prosecution because the individual counts they had did not
exceed a certain monetar' level. Ihey were not taken oin a
collective hasis apparently, where there is a substantial
amount of mnione involved.
The case was reassigned to me, in an attempt to obtain
injunctive relief against carriers or shippers. The case was
reassigned to me. and for the past month I have been con-
ducting reinvestigation to. No. I. redevelop the scope: and,
No. 2 determine whether any progress has been made. ad-
ministratively.
I found that there has been some progress in certain areas
but there has been no progress in connection with the
owner-operator or the produce truckers. These are ener-
ally independent businessmen.
In produce they are still required to hire lumpers. Again.
if they refuse, they are subjected to various abuses.
In the meat business, where we have refrigerated conm-
modifies. I find that they are subjected to the same pres-
sures that the grocers haulers are subjected to. that is, the!
are required to hire lumpers even though in many instances.
they do not wish to do so.
The hanging beef is slightly different. One driver cannot
unload hanging beef by himself. so lumpers are hired, but
yet the requesting party usually ends up paying and the
owner-operator in many instances is reimbursed. not the
full amount, but a portion of the amount of the cost. The
costs range from $60 to $100 for anyw here from 15 minutes
to 2 hours of work.
Mr. SMITH. Which the driver could have done?
Mr. BILL. In many instances: yes. In packaged meats. I
have talked to many' drivers, and they say that since the
money is coming out of their pocket they would love to save
$80 to $90 and spend 1 or 2 hours in back of their trucks
unloading. Frequently, these products come in on pallets.
which is an efficient method of unloading a truck. It takes
about 20 minutes with a forklift. However, they are not
allowed the use of the forklift unless they pay the lumper.
The lumper still collects his $80 or $90, and in some in-
stances just stands by and watches the driver unload.
Mr. SMITH. Does the lumper own the forklift?
Mr. BILL. No. sir. Forklift and unloading facilities are
generally owned by the receiver. I have found there is a
close working relationship between the lumpers on the dock
and the receiver's receiving personnel.
These lumpers are not employees of the receiver. They do
not have contracts with the independent truckers, and if
you call the local teamster hall they disavow any responsi-
bility for the lumpers' activities.
However, there is an implied threat of a wildcat strike
which, if a receiver takes a strong measure of banning the
lumpers from his premises, there is a possibility of a wildcat
strike taking place which could severely hurt a meat com-
pany or any receiver.
Mr. SMITH. Do you know who would be responsible for
the wildcat strike, the so-called wildcat strike? Would it be
because the lumpers have enough muscle to bring pressure
on the workers who are working there to cause them to stay
off or is it because it is called hb somebody else'? Do ou
know?
Mr. BILtL. The lumpers are members of the Teamsters
Union. Any time they have a question regarding a trucker
who says, "I am not going to hire you." they, a.lass conttact
their local business agent. Ihere is a definite relationship
betw een the lumpers and local eamsters tinion.
Mr. SMI 11. And the lumper does not A, ork for the re-
ceis er?
Mr. BI1.1.. Ihat is correct. The ustlticallion or his pres-
ence on the receiving dock. according to the receivers who
have these lumnpers on their docks,. is that the's are there or
the benefit of the trucker.
Mr SMITIt. On whose payroll do the! appear for tax
purposes'
Mr. BILl. hes would probablh . if they were declaring
taxes. he on the trucker's payroll as contract labor because
when the trucker hbacks up he is frequently contronted with
a lumper. dema.nds are mnLde for fees to unload the echicle.
Mr. SM IT I. Obviously they do not put themn on the
paiyroll. ha t would he so much bookx ork eers time the'
stopped somewhere. An accountlant w ould not keep track
of that'?
Mr. BILL. Receipts tor these rnoneys frequentl are is-
sued. My only personal experience, and I can relate an in-
stance tor Del Monte Foods in Alameda. (Calif. solleho
thes found out who m brother was. For a week :ill the
receipts issued at that plant were in his name.
Mr. SM ITH. What kind of income are we talking about?
Mr. BILl.. I have been advised b the director of the
D)epartment of Economics of the Calit rni;a Irucking Asso-
ciation that Safewa Foods conducted a stud!, of thie rmon-
es paid the truckers ser icing them on Satea, dlocks in
Richmond. C('alitf.
The figure quoted to me wa s that these part-time lumpers
earn $80,(X)0 a sear. and that was 6 ears ago.
Mr. SMITHi. What is an area lumper oor boss lumper?
Mr. HIll.I.. An area lumper is a man assigned specific
geographical loctlion. usually one particular receiver acil-
ity.
Mr. SMITH. Who assigns him?
Mr. BII... The local eamsters U nion. He is the man in
charge and insuring that the lumpers obtain work. tie is the
man who reports directly to the local business agents it
there is a problem.
Mr. SM1 ITHI. What about l.ucks's Food Store?
Mr. Bll .. I.uck's had a white line painted on the re-
ceiving dock approximatelN 20 feet from the edge of it.
They would not receipt the goods. sign for the goods, until
the commodities had been moved across that line.
Since most of the grocery items come in on pallet it is
necessary to use a forklift to place them across that line.
That white line prohibited the driver from unloading off the
tailgate of his truck immediatelI adjacent to his vehicle and
required that he obtain the services of a luniper. who in
turn, when the luniper was paid, then I.uck's warehouse
personnel would come across the line with a forklift and
bring back the foodstuffs [into the warehouse]."
Mr. SMIT I. Etither of ou or both can answ er this ques-
tion. When the 1(( grants a tariff it includes within the
tariff nl v ing got)ds fro m one point to another.
Does that taritff include unloading?
Mr. BILI.. Generally speaking. the rates in a tarilff are or
the transportation. I he include the dri er's assistance. The
drixer can assist in the loading and unloading.
If additional employees are requested hb the shipper or
h(l3
[):('ISIONS OF NA''IONAI. LABOR R:LATIONS BOARI)
receiver this would he to their benefit. It speeds up the un-
loading process. It allows them additional help without em-
plovying extra warehouse helpers.
The trucker may provide them but there is a charge lor
that extra service, a charge normally over and above line
haul rates.
Mr. SMI'ItH. IDo the tariffs involve this service in an)
way, the service that the lumpers are apparently charging
for?
Mr. BILL.. Yes. There are charges in the tariffs that carri-
ers are supposed to charge the shippers. For instance, if you
go in to deliver at Del Monte. a lumper is there you hire
the lumper or the tire is slashed. It is that simple.
The carrier by right should bill Del Monte for the extra
unloading charges. When I speak of carrier. I am not refer-
ring to the owner-operator. He is under separate contract
with the carrier.
However. even so., ila lumper is provided and is required.
as the case is, the carrier is supposed to bill the party receiv-
ing the benefit of that lumper's service, which would be the
receiver and reimburse the owner-operator. This. I found.
generally is not done in connection with packaged goods.
'Ihe carrier does not comply with the tariff provisions ....
Mr. BII.L. In San Francisco there is a produce terminal
where fresh Fruits and vegetables come into the bay area.
Many of the lumpers and personnel on those docks carry
concealed weapons. I you don't have those, you can buy
one from the bartender at the bar located on the same dock.
You have knives. ice picks. meat hooks. many weapons are
asailable and sometimes they are used.
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