Over-The-Road, City Transfer, Cold Storage, Grocery And Market Drivers And Helpers, Inside Employees, Local Union No. 544

National Labor Relations Board - Board Decisions

Feb 20, 1985

274 N.L.R.B. 164 (N.L.R.B. 1985)

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Over-the-Road , City Transfer , Cold Storage, Gro-
cery and Market Drivers and Helpers , Inside
Employees , Local Union No. 544 , affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America
and Better Home Deliveries , Inc. Case 18-CP-
257
20 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 12 March 1984 Administrative Law Judge
James M. Fitzpatrick issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed an answering
brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended
Order. z
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Over-the-
Road , City Transfer , Cold Storage , Grocery and
Market ' Drivers and Helpers, Inside Employees,
Local Union No. 544 , affiliated with International
Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America, Minneapolis, Minne-
sota, its officers , agents, and representatives, shall
take the action set forth in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In the fifth paragraph of sec 1II,13 of his decision, the judge incorrect-
ly cited the Board's decision in Teamsters Local 456 (Construction City
Corp) The correct citation is 233 NLRB 418, 420 (1977)
2 On 13 June 1984 the United States Court of Appeals for the Eighth
Circuit issued a plurality decision affirming the District Court for the
District of Minnesota's denial of the Board's request for a preliminary in-
junction against the Respondent's picketing activities, finding no reasona-
ble cause to believe the Respondent's conduct violated Sec 8(b)(7)(C) of
the 'Act The court, however, based its decision on a different record
than this decision, and did not have the benefit of the judge's credibility
findings that have been made herein
DECISION
STATEMENT OF THE CASE
JAMES M FITZPATRICK, Administrative Law Judge. In
this case the Union picketed a nonunion employer for
more than 30 days without seeking a representation elec-
274 NLRB No. 34
tion under Board auspices Although the Union dis-
claimed any purpose to organize the Employer's employ-
ees or to obtain recognition as their representative, I find
its purpose necessarily required sufficient recognition
from the Employer to establish recognitional and organi-
zational objects which render the extended picketing un-
lawful.
Procedurally this case arises from unfair labor practice
charges filedApril 21, 1983,1 by Better Home Deliveries,
Inc. (BHD or the Charging Party), that Over-the-Road,
City Transfer, Cold Storage, Grocery and Market Driv-
ers and Helpers, Inside Employees, Local Union No.
544, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (Respondent or Local 544), had violated Section
8(b)(7)(C) of the National Labor Relations Act (the Act)
Based on these charges the General Counsel of the Na-
tional Labor Relations Board (the Board) issued a com-
plaint on behalf of the Board on May 6, 1983, alleging
that Local 544 had engaged in unfair labor practices pro-
scribed by that Section of the Act. Local 544 answered
the complaint, denying the unfair labor practices. The
general issue posed is whether Local 544, which picketed
BHD for more than 30 days without filing a representa-
tion petition with the Board, did so with an organization-
al or a representational object. The case was heard
before me at Minneapolis, Minnesota, on June 22, 1983.
Based on the entire record, including my observation
of the witnesses and consideration of the briefs filed by
the General Counsel, the Charging Party, and the Re-
spondent, I make the following
FINDINGS OF FACT
I. THE EMPLOYERS INVOLVED
Dayton-Hudson Corporation is a large retail concern
operating retail stores in various States and communities
including Minneapolis, Minnesota. Target, Inc (Target),
a division of Dayton-Hudson Corporation, operates retail
discount department stores in various States of the
United States, including the area of St Paul and Minne-
apolis, Minnesota In conjunction with its retail oper-
ations Target operates a distribution center in Fridley,
Minnesota, a northern suburb of Minneapolis, as well as
various satellite warehouses in the Twin Cities area.
These warehousing and retailing operations require local
transportation services During the period immediately
preceding March 20, 1983, Target had retained Berry
Transportation Co. (Berry) as its principal local hauler
and Space Center Cartage Co. (Space Center) for addi-
tional local hauling.
Leaseway Transportation Corporation (Leaseway), a
nationwide trucking concern, has approximately 120
wholly-owned subsidiaries which perform trucking.
BHD, one of these subsidiaries, is an Ohio corporation
with its principal office in Cleveland, Ohio, and engages
in the interstate transportation of freight and commod-
ities. Since March 21, 1983, BHD has engaged in local
cartage in Minnesota as the contract carrier for Target
' All dates herein are in 1983 unless otherwise indicated
TEAMSTERS LOCAL 544 (BETTER HOME)
between its distribution center, warehouses, and retail
stores. During the calendar year 1982 BHD derived
gross revenue exceeding $50,000 from the interstate
transportation of freight and commodities. In its oper-
ations Target annually receives gross revenues exceeding
$500,000 and receives at its distribution center in Fridley,
Minnesota, directly from points outside Minnesota, goods
and materials valued over $50,000. In the 7-week period
following March 21, 1983, a representative period, BHD
performed local transportation services for Target from
which it derived gross revenues exceeding $50,000. At
all times material herein BHD and Target have been em-
ployers and persons engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 544 represents employees, including truckdrivers
in Minnesota. Its territorial jurisdiction includes a broad
belt of Minnesota along an east-west line at the conflu-
ence of the Minnesota and Mississippi Rivers, extending
from Wisconsin to South Dakota and including the area
in and around Minneapolis where its union hall is locat-
ed. Its sister local, Local 120, also affiliated with the
Teamsters International, also represents employees, in-
cluding truckdrivers, in Minnesota. Local 120's union
hall is in St. Paul and its territorial jurisdiction includes a
similar broad belt across Minnesota from Wisconsin on
the east to South Dakota on the west and immediately
south of and contiguous to the territory served by Local
544. Truckdrivers represented by each Local work in the
territory of the other and the two Locals typically coop-
erate on problems of mutual interest.
Local cartage concerns in the Twin Cities area whose
employees are represented by either Local 544 or Local
120 are signatory to the Teamster National Master
Freight Agreement and the Central States Area Local
Cartage Supplemental Agreement which, together, con-
stitute the applicable collective-bargaining agreement
with either Local.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Cancellation of the Prior Hauling Arrangement
Until March 20, 1983, local hauling services for Target
at its distribution center in Fridley and between there
and its other warehouses and its stores which were pro-
vided by Berry and to a lesser extent by Space Center,
involved about 12 to 15 jobs for truckdrivers. Although
the distribution center is within the territorial jurisdiction
of Local 544, Berry drivers worked under a collective-
bargaining agreement between that company and Local
120. Space Center employees worked under a collective-
bargaining agreement with Local 544. Under these
agreements drivers received $12.74 per hour plus fringe
benefits which were funded by employer contributions
for each driver of $55 per week to the union pension
fund and $45.50 per week to the union health and wel-
fare fund, totaling $100.50 a week for these fringes. Ef-
fective March 20, Target terminated its business relation-
ships with Berry and with Space Center, thus eliminating
the jobs of the 12 to 15 drivers represented by Local 120
or Local 544. At that point Berry was already in finan-
165
cial difficulties and had filed a petition in bankruptcy, a
development of which the union officials were aware
B Installation of Better Home Deliveries as Local
Hauler for Target
Prior to the termination of its hauling arrangements
with Berry and Space Center, Target arranged with
BHD to assume responsibility for Target's local cartage
needs starting Monday, March 21. In preparation for
this, BHD advertised for drivers, interviewed applicants,
and hired drivers during the preceding week The new
hires were given an orientation which included the infor-
mation that they would be paid $10 per hour and would
receive fringe benefits including hospitalization, dental
care, and life insurance coverage, and vacations and holi-
days They were assured 40 hours of work per week
with the possibility of overtime work
BHD commenced performance of its contract with
Target on the morning of Monday, March 21. The work
performed was precisely the same as Berry and Space
Center employees previously had performed
C. Union Reaction to the Changes in Local Cartage
Arrangements
1. The Union's information
Charles Gale, the Local 544 steward for Space Center,
had learned on Friday, March 18, that Berry and Space
Center were being replaced as carriers at the Target dis-
tribution center. At the Local 544 monthly membership
meeting on Sunday, March 20, he reported that develop-
ment to union members and officials in attendance. He
informed them the replacement carrier probably would'
be Leaseway, would start operations on Monday, March
21, and would be paying drivers between $ 8 and $10 an
hour, although he did not know exactly what the rate
would be. He also indicated that Space Center had had
three to four drivers working regularly out of the 'distri-
bution center and on occasion as many as six or seven
Following the meeting, Charles Madden, secretary-treas-
urer and chief executive officer of Local 544, telephoned
Harold Yates, who held a comparable position in Local
120, to inquire whether he had any information on the
matter They agreed that Madden should send a couple
of business representatives to the distribution center to
investigate Madden commissioned Donald Keegel and
Donald Huemoeller, recording secretary and president,
respectively, of Local 544 and both business representa-
tives, to look into the situation the next morning.
Early Monday morning Keegel and Huemoeller went
to the distribution center in Fridley They observed
trucks with Better Home Deliveries painted on the side
being used for the same work that Berry and Space
Center trucks had previously been used They also ob-
served a Better Home Deliveries spotter working in the
yard. They concluded that BHD was now performing
the Target local cartage They also called over one of
the drivers, Howard Stein, to where they had stopped
their car and, without identifying themselves, asked for
whom he was working. Apparently he confirmed he was
working for BHD
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Not long thereafter Stein left the distribution center in
a BHD truck to make a delivery. Keegel and Hue-
moeller left immediately after Stein. After traveling sev-
eral miles, one of the tires on Stein's truck lost its recap
and began pounding, causing him to stop on the side of
the road Keegel and Huemoeller saw him pull over and
also stopped to see whether they could help. During the
ensuing conversation, Keegel asked him how much he
was making per hour and what fringe benefits he would
receive. According to Keegel, whom I credit because of
his orderly and detailed testimony respecting the conver-
sation, Stein replied he was receiving somewhere around
$8 With respect to fringe benefits, he said he believed he
had a health insurance plan but was not sure what it was.
Stein testified that Huemoeller made the statement that
Stein was getting paid about $8 an hour, but he could
not recall either union representatives asking him, nor
could be recall himself making, any response respecting
wages. According to Stein, nothing was said about fringe
benefits. The union agents did not ask his name, nor
whether he was a union member, nor did they make any
effort to enlist his support for the Union. They did ask if
he was going to drive farther and, if not, whether they
could give him a lift in their car. He declined, saying he
only had a couple more miles to go. At the end one of
them said, "You probably know we're with the union,"
and he replied, "Yes." Insofar as Stein's testimony varies
from that of Keegel, I credit Keegel. Stein admittedly
was apprehensive, believing he was being followed.
When the union agents first stopped, he told them that
he did not want trouble They, however, were not in
fact following him. They simply were returning to the
Local 544 hall along the same highway and in the same
direction as he, and when he stopped, they stopped also
to ask if they could help Both men had themselves been
truckdrivers for many years.
Keegel and Huemoeller proceeded to the Local 544
hall where they reported to Madden about 8.30 or 9 in
the morning that a new local hauler was definitely in
place at the distribution center performing the Target
work; that its name was Better Home Deliveries with an
address in Golden Valley, Minnesota; and that they had
talked to a dnver who said he thought he was being paid
$8 per hour They also reported that the driver thought
he had some kind of health plan but they had obtained
no information as to amounts According to Madden, the
two business agents made no reference to a pension or
retirement plan, or to life insurance, holidays, vacations,
or other benefits. Based on this report, Madden conclud-
ed that BHD was paying substandard wages. Early that
afternoon Madden telephoned Yates again and they met
in midafternoon at the Local 120 office. Based on the in-
formation they then had, Madden and Yates decided to
picket BHD at the distribution center.
2. Picketing at the distribution center
On the morning of Tuesday, March 22, Local 544
began picketing at the distribution center and continued
picketing on a daily basis without interruption until May
10 when, in compliance with a temporary restraining
order of the United States District Court for the District
of Minnesota, picketing ceased.2 Subsequently the court
lifted its restraining order and on May 31 or June 1
Local 544 resumed its picketing which continued at the
time of the hearing herein on June 22. The picketing thus
has continued for morethan 30 days The parties stipulate
that Local 544 has not filed a petition with the Board
seeking a representation election among BHD employ-
ees. It is undisputed that Local 544 did not contact BHD
directly prior to picketing to inquire of management re-
specting wages being paid or fringe benefits for employ-
ees. The picket signs, in addition to the union name, car-
ried the following legend:
NOTICE TO THE PUBLIC, BETTER HOME
DELIVERIES PAYS ITS DRIVERS A SUB-
STANDARD WAGE AND FRINGE BENE-
FITS. -
Some of the signs were not newly fabricated for this dis-
pute but were old signs used by Local 120 on prior occa-
sions and were brought into service again for this dispute
because the Unions were short of supplies. On these
reused signs the additional words ON STRIKE had ap-
peared below the above legend. An effort was made to
cut off those words so the signs could be used for this
dispute, but the trimming was not complete and on some
enough of the top of the words ON STRIKE appeared
so that a reader could make out what the words had
been.
The pickets and union representatives made no other
effort during the picketing, or for that matter at any
other time, to organize BHD employees, nor was any
effort, other than the meeting solicited by management
referred to below, made to communicate with the BHD
management . Although the Union made no contact with
management before commencing picketing, it sent a tele-
gram to BHD in the afternoon of the first day of picket-
ing. The telegram read as follows:
IT HAS BEEN BROUGHT TO OUR ATTEN-
TION YOUR TOTAL LABOR COST FOR
DRIVERS AND WAREHOUSEMEN IS
BELOW THAT WHICH HAS BEEN NEGOTI-
ATED WITH OTHER CARRIERS IN THE
AREA. UNLESS WE RECEIVE DOCUMEN-
TATION TO THE CONTRARY AREA
STANDARD PICKETING WILL CONTINUE
AT YOUR TERMINAL AND AT SUCH
OTHER LOCATIONS WHERE YOU ARE EN-
GAGED IN YOUR NORMAL BUSINESS.
BHD received the telegram late that afternoon or early
the next morning The Union claims it received no re-
sponse to the telegram. However, the parties met the fol-
lowing day at the request of BHD.
2 Apparently Local 120 also supported and participated in the picket-
ing but there is no contention that Local 120 engaged in unfair labor
practices and it is not named as a respondent
TEAMSTERS LOCAL 544 (BETTER HOME) 167
D. The Meeting on March 23
When picketing began, Target and BHD acted to es-
tablish a separate gate for BHD at the distribution center
by attaching a small sign to one of the gates. About 9
o'clock on the morning of Wednesday, March 23, there
apparently having been no change in picketing in spite of
the "separate gate," Michael Kota, a staff labor counsel
for Leaseway, came from the distribution center out to
the picket line and asked for Madden, who had signed
the telegram from Local 544 the previous afternoon. A
picket pointed him out and Kota, accompanied by
Edward James, a district manager for Leaseway respon-
sible for three of its subsidiaries including BHD, ap-
proached Madden. Kota introduced himself and request-
ed a meeting to discuss the picketing. Madden agreed,
and they arranged to meet at 11 o'clock that morning at
the Sheraton Inn.
Kota came to the meeting with James. Madden ap-
peared in the company of Keegel whose duties as busi-
ness agent included representation of Space Center em-
ployees. A discussion ensued about which little contro-
versy exists, except for one point discussed hereinafter.
Otherwise, the four participants agree in substance as to
what was said, although from the record it is not possi-
ble to determine the entire sequence of the comments.
Madden testified, and I find, that following the introduc-
tions, Kota asked what the problem was and Madden re-
plied that BHD was not paying the area standard wage.
Kota inquired how they knew what BHD was paying
and Madden replied that they had their ways. Also, early
in the discussion, according to Keegel, whom I credit,
Kota asked Madden, "Why don't you leave Target
alone? Why don't you organize us-what's the prob-
lem?" To this Madden responded that the Union did not
have a problem with Target, that the picketing was for
area standards. The union officials made no inquiry
during the meeting as to what wages BHD was paying.
But Kota volunteered that they were paying $10 per
hour. He also handed Madden a booklet entitled "Your
Leaseway Transportation Corp. Non-Union Employee
Benefits Plan."3 I find he also handed Madden another
document entitled "Better Home Deliveries, Inc. Em-
ployee Handbook," which was either enclosed in the
first pamphlet or handed separately to Madden.4 Madden
3 The Leaseway Transportation Corp nonunion employee benefits
plan (R Exh 1) is a 48-page pamphlet which describes in detail the vari-
ous insurance benefits provided for nonunion employees of Leaseway
companies , including group life insurance , accidental death and dismem-
berment insurance , short- and long-term disability benefits, health insur-
ance, and dental insurance
4 Better Home Deliveries, Inc employee handbook (R Exh 2) is a 26-
page document supplied to BHD employees at the time of hiring which
describes BHD and its relationship to Leaseway, and generally sets forth
the rights and duties of BHD employees with particular reference to
hours of work, employee benefits such as the employee health plan, holi-
days, vacations, safety, employee disputes, discipline, and pay policies
With respect to pay, no specific rates are set forth However, one of the
three pay policies is, "to insure that our rates of pay compare favorably
with those throughout the industry " The handbook declares that "all
wages and salaries are determined by an established rate range of the po-
sition you perform What you are paid depends primarily on the type of
work you do and how well you do it Every job or position in the Com-
pany has its own wage and/or salary rate range that expresses the value
of that position to the total Company "
did not examine the employee benefits plan (the first
document), simply placing it down in front of him. He
quickly perused the employee handbook (the second
document) to see if a wage rate was indicated, but none
was. Specific reference to the wage rate of BHD appar-
ently arose when Keegel mentioned he had spoken with
a BHD driver who told him he was receiving about $8
per hour. Kota corrected this by stating the rate was $10
per hour, a figure consistent with what was told to Stein
when he was hired the week before. Although Madden
had no recollection of that figure being mentioned,
Keegel recalled that Kota gave some figure in response
to his report of his conversation with Stein but, like
Madden, did not remember the figure $10. Both Kota
and James testified that Kota stated the wage rate was
$10, and I credit them. Neither Madden nor Keegel
asked what the company wage rate was.
Kota asked Madden what the area standard was that
BHD was being accused of not meeting. In responding
Madden indicated that the area standard was the Team-
ster National Master Freight Agreement supplemented
by the Central States Local Cartage Agreement, and he
further indicated in response to another question from
Kota that the applicable area standard was those agree-
ments word for word He testified that his intent at the
meeting was that the problem between the Union and
BHD could be satisfied if the Company would pay its
employees in accordance with the National Master
Freight Agreement and the supplemental agreement, that
is, at the rate of $12.74 per hour plus fnnges comparable
to those in the union agreements . But he admitted it was
not acceptable to the Union for the employer to pay a
lower hourly rate and provide greater fringe benefits. It
is undisputed that the participants in the meeting referred
to these agreements as "the book" and that they all were
familiar with them although no copies were present at
the meeting. According to Madden, whose account of
the meeting I credit in this respect, he stated that the
Union's sole purpose in picketing was for area standards
and that if BHD would pay the area standard, the Union
-`would walk away."
Neither union official asked for the names and address-
es of BHD employees According to Madden, Kota told
him the Union should get off Target's back and organize
the BHD drivers and that Madden responded that the
Union had no dispute with Target and was not interested
in the BHD employees, that the Union had plenty of
laid-off drivers already. Madden said the Berry employ-
ees already had lost their jobs as a result of BHD taking
over the Target contract, and Keegel complained that
Space Center employees also had lost jobs. Kota ex-
pressed surprise regarding the asserted loss of jobs with
Berry since he had understood Berry was either already
in bankruptcy or involved in a reorganization proceed-
ing.5
Following the interchange about Berry and Space
Center, Kota asked Madden what it would take to re-
solve the dispute. According to Kota and James,
5 Madden's testimony indicates that as of the time of the Local 544
general membership meeting on Sunday, March 20, he already knew that
Berry had filed a petition in bankruptcy
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Madden replied, "Sign the book," but according to
Madden and Keegel, he said, "Pay the book." Both
James and Keegel indicate that the remark, in whichever
form uttered, was made twice during the meeting. In
support of his version that he said "pay" rather than
"sign" the book, Madden testified that he had no copies
of the union contract with him and if his purpose had
been to obtain the signature of BHD on a collective-bar-
gaining agreement, he would have brought a copy to the
meeting The testimony of Kota and James, on the other
hand, is supported by a prior consistent statement of
James in his affidavit given on March 23, the same day
as the meeting, during investigation of charges against
Local 544 filed by BHD under Section 8(b)(4)(B) of the
Act. In pertinent part the affidavit reads, "Toward the
end of the meeting Kota asked Madden what it would
take to settle the picketing. Madden said sign the book."
In resolving the credibility conflict as to whether
Madden said "sign the book" or "pay the book," de-
meanor of the witnesses is of little help. Each of the four
participants in the meeting appeared believable James
and Keegel were more general in their accounts and ap-
parently were more observers than participants Kota
and Madden gave fuller accounts, particularly Kota who
also seemed to have a more precise recollection of the
sequence of remarks. In his testimony Madden logically
argued that, if he had had a recognition object, he would
have brought a copy of the agreement with him. On the
other hand, the sworn affidavit of James, made very
shortly after the event, tips the scales of credibility reso-
lution toward the version of Kota and James According-
ly, I find that Madden said "Sign the book" Shortly
after this, the meeting broke up, having lasted only 10 or
15 minutes . In addition to the comments referred to
above, those at the meeting also discussed what BHD
claimed was secondary boycott conduct by Local 544.
E. The Appeal to Union Membership
On March 29 Madden sent the following notice to all
members of Local 544.
URGENT NOTICE TO ALL MEMBERS
ACTIVE - ON WITHDRAWAL - OR
RETIRED
Dear Member
This Local Union and our sister Local Union No.
120 is currently engaged in a very bitter struggle to
preserve Union jobs. Your help is urgently needed.
On Monday, March 21st, Target Stores, Division
of Dayton-Hudson Corporation, replaced a Union
cartage company with a non-union company and 15
Teamsters were immediately put out of work. On
Tuesday, March 22nd, this Local Union established
a picket line at the Target Warehouse, 7120 N E.
Highway 65 in Fridley against the new non-union
carrier - Better Home Delivery Service
We desperately need your help to maintain this
picket line. We have pickets active from 6:00 A.M
to Midnight each day and we need you to donate
an hour or two of your free time to help us main-
tam this picket line WE MUST PRESERVE
THESE UNION JOBS BECAUSE YOURS
COULD BE NEXT.
We already know that on Monday, April 11th, 24
additional Teamsters will be replaced from their
jobs as Emery Air Freight pickup and delivery em-
ployees. These jobs are being replaced by the larg-
est non -union cartage company in town - M W.
Ettinger. We cannot continue to allow this erosion
of Union jobs We are planning a Union Rally to be
held in the third floor auditorium at 2636 Portland
Avenue South, Minneapolis, at 10:00 A.M on
Sunday, April 10th. It is imperative that each and
every member of this Local Union who can possi-
bly make it attend this meeting THE NEED IS
NOW. WE MUST RE-UNITE TO PRESERVE
THESE UNION JOBS We are hoping to have a
representative from the Chicago office of the Cen-
tral Conference of Teamsters to speak at this rally.
Again, I repeat, do not forget - the next job lost
could be yours. Please help us in Fridley and plan
to be in attendance at our Rally on April 10th
Fraternally yours,
LOCAL NO 544
CHARLES T MADDEN
Secretary-Treasurer
The General Counsel and BHD urge that this notice
tends to show a recognitional object for the picketing be-
cause it characterizes the dispute as "a very bitter strug-
gle to preserve union jobs," and because at two other
points it emphatically declares the Union's purpose to
"preserve these union jobs " It seems to me that the
strength of the union protest is immaterial to the issue
presented here, namely, the object of the Union's picket-
ing. The Union could and in fact is entitled to be as ener-
getic in pursuit of one object as another The strength of
the Union's effort is immaterial in determining whether
that object is or is not lawful. On the other hand, the re-
peated reference to preserving "these union jobs" indi-
cates a purpose to either achieve unionization of the jobs
through recognition of the Union as the representative of
employees now holding those jobs or a secondary boy-
cott purpose of forcing Target to return the local cartage
contract to Berry and Space Center whose unionized
employees previously held the jobs, or both. Thus, the
notice to members corroborates the other evidence pre-
viously cited indicating Respondent entertained a recog-
nitional object in picketing BHD.
F Rejected Evidence
Under Section 8(b)(7)(C) of the Act a union may not
picket to obtain recognition or bargaining or to organize
the employees unless within a reasonable time, not to
exceed 30 days, it petitions the Board for an election to
resolve whether it is entitled to represent the employees.
Here, Local 544 has picketed for more than 30 days and
has not petitioned the Board for an election. Whether the
Union's conduct is an unfair labor practice under Section
8(b)(7)(C) turns, therefore, on whether an object of the
TEAMSTERS LOCAL 544 (BETTER HOME)
picketing is to obtain recognition or bargaining from
BHD or to organize its employees, or only for other pur-
poses.
As part of the affirmative case, BHD offered certain
evidence which was rejected and in its posthearing brief
again urges that that evidence be considered As noted
previously, BHD, in addition to filing the charges in the
instant proceeding, also filed charges under Section
8(b)(4)(B) of the Act asserting that Local 544, in the
course of its dispute with BHD, engaged in secondary
boycott conduct forbidden by the Act During the inves-
tigation of these charges, the General Counsel reached a
settlement agreement with Local 544 respecting them
and no complaint issued alleging that Local 544 violated
Section 8(b)(4)(B) of the Act BHD did not participate in
this settlement
BHD also filed charges with the Board asserting that
Local 544, in connection with its picketing at the distri-
bution center and related conduct, committed unfair
labor practices prohibited by Section 8(b)(1)(A) of the
Act. After investigation of these charges, the General
Counsel issued a complaint alleging that the Union had
engaged in such unfair labor practices and the Board's
Regional Director ordered this complaint consolidated
for hearing and decision with the complaint in the
present 8(b)(7)(C) case. However, prior to the hearing,
the General Counsel reached agreement on a settlement
with Local 544 respecting the alleged 8(b)(1)(A) unfair
labor practices and the two complaints were severed by
the Regional Director. As with the settlement of the sec-
ondary boycott charges, BHD did not agree to settle-
ment of the 8(b)(1)(A) complaint.
During the hearing in the present 8(b)(7)(C) proceed-
ing, counsel for BHD offered to prove in support of the
allegation that the picketing was for a recognitional or
organizational object that during the first 3 days of the
picketing Local 544 picketed gates at the distribution
center reserved for Target and others not doing business
with BHD, and also that during the extended period of
picketing the Union picketed at times and at places when
BHD was not present. That evidence, which was reject-
ed, apparently would have been the basis of any affirma-
tive case of secondary boycott unfair labor practices
founded on the 8(b)(4)(B) charges which were settled.
Counsel for BHD also offered to prove, but was not al-
lowed to, that during the picketing union pickets and of-
ficials were arrested by the police, that BHD equipment
was damaged on many occasions, that on occasion nails
and other objects were thrown into the entrances to the
distribution center, and that on numerous occasions
Local 544 officials and others followed BHD delivery
trucks to other locations. This evidence apparently
would have been part of the affirmative case to support
the 8(b)(1)(A) complaint against Local 544 which was
severed and settled between the General Counsel and the
Union In the same vein, counsel for BHD offered to
prove, but was not allowed to, that in disobedience of a
Minnesota State Court order limiting the number of pick-
ets at the distribution center, Local 544 picketed with as
many as 40 to 50 pickets
These offers of proof were rejected on the ground that
evidence of another object proscribed by the Act, such
169
as a secondary object, did not tend to show an object
prohibited by Section 8(b)(7)(C) Secondly, evidence rel-
evant to the 8(b)(1)(A) complaint, such as violence or
other unacceptably strong action in support of the
Union's side of the dispute, did not tend to establish a re-
cognitional or organizational object, as distinguished
from nonrecognitional and nonorganizational objects, be-
cause the evidence offered could equally relate to such
other objectives such as the protesting of the payment of
below area standard wages, and would not relate in a
material way to the issue of whether the Union's objec-
tive was or was not one prohibited by Section 8(b)(7)(C)
The proffered evidence was also rejected because, for
the most part, it would have formed the basis for the
8(b)(4)(B) and the 8(b)(1)(A) cases which the General
Counsel had settled. While it is true that the Charging
Party refused to join in either settlement, Section 3(d) of
the Act makes clear that the General Counsel bears the
statutory responsibility for tailoring causes of action in
Board proceedings. In pertinent part that section pro-
vides, "He shall have final authority, on behalf of the
Board, in respect of the investigation of charges and issu-
ance of complaints under Section 10, and in respect of
the prosecution of such complaints before the Board
. . . ." Inasmuch as the General Counsel had already
settled those other matters, and even though the General
Counsel took no position respecting the offers of proof in
the present matter, I deem it inappropriate for the order-
ly management of Board unfair labor practice hearings to
litigate matters already settled which do not have a ma-
terial impact on dispositive issues in the current matter.
Accordingly, I adhere to the rulings made during the
hearing rejecting the above-described evidence.
G. Discussion of the Objects of the Picketing
On the dispositive issue of the objects of the picketing,
Respondent 's general defense is that the affirmative case
fails to establish that a recognitional or an organizational
object was involved There is evidence on both sides of
that issue, but considering the entire record I find a pre-
ponderance of the evidence establishes that Local 544
picketed the distribution center with a recognitional and
an organizational object.
The Union asserts it has picketed to protest the failure
of BHD to meet area standards in terms of pay and bene-
fits, and there is evidence to support that position. The
General Counsel and BHD , on the other hand, contend
that some of the Union 's conduct is inconsistent with its
claimed position and indicates instead that that position is
a pretext . The moving parties point first to the Union's
failure to inquire of BHD, in advance of picketing, as to
the wages and benefits the Company was giving its em-
ployees . The point is well taken because the employer
itself possessed the most information respecting wages
and benefits, and failure to tap that source of information
suggests the Union was not then interested in learning
what the Company was, or claimed to be, doing in this
regard . The General Counsel, and particularly BHD,
contend further that the Union did not investigate, or
sufficiently investigate , what BHD employees were re-
ceiving I agree. Some information came to the Union
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to the picketing through the Space Center steward
at the general membership meeting on March 20, and
through the efforts of Keegel and Huemoeller in going
to the distribution center early on March 21 and in talk-
ing to Howard Stein there and on the highway. These
efforts certainly establish some investigation. But the in-
vestigation was not exhaustive and the information ob-
tained was sketchy. See General Service Employees Union
Local 73 (A-1 Security Service), 224 NLRB 434 (1976), at
435-436, Carpenters Local 1622 (Iacono Structural Engi-
neer), 250 NLRB 416, 418-419 (1980); Teamsters Local 88
(West Coast Cycle Supply), 208 NLRB 679 (1974). At the
same time, the Union ignored the most obvious source of
information about wages and fringe benefits, BHD itself,
and the Union's purpose in picketing must be construed
in that context. San Francisco Local Executive Board
(APB Enterprises), 207 NLRB 199 (1973) at 204.
A similar point in support of the affirmative case is the
fact that Local 544 began its picketing on Monday morn-
ing without notice to BHD or opportunity for it to
comply with the claimed area standards before sustaining
the inconveniences and disadvantages attendant upon the
picketing at the distribution center. See Teamsters Local
456 (Construction City Corp.), 233 NLRB 418 (1977) The
Union's ignoring of the possibility that this employer
might comply with the Union's area standards suggests,
again, that the Union was not interested in mere compli-
ance with area standards but had some other purpose. Of
course in the early afternoon on the first day of picketing
Madden did send an appropriate notice to BHD asserting
it had information that the Company's total labor cost
was below that negotiated for other carriers in the area,
and soliciting documentary proof to the contrary But
that notice came after BHD and Target, as well as their
employees, had already felt the initial impact of picketing
and does not dispel the inference that in engaging in that
initial picketing the Union was not interested in giving
BHD an opportunity to comply with the claimed area
standards
As to the picketing itself, I find the picket signs did
not indicate an organizational or a recognitional purpose
The signs simply protested substandard wages and fringe
benefits The fact that on some signs the top portion of
the words ON STRIKE was still visible is immaterial.
Explanatory evidence indicates that these were simply
old signs used by Local 120 on a previous occasion and
which were pressed into service, with at least the lower
half of the words ON STRIKE being cut off, only be-
cause the Unions were short of sign material. It does not
appear that anyone was misled At no time in the course
of this dispute has Local 544 engaged in conduct which
could be construed as a typical organizing effort or
appeal Nor has it asked BHD to sign a collective-bar-
gaining agreement with it. On the contrary, at the meet-
ing with BHD officials on March 23, Madden disclaimed
any interest in representing BHD employees
The clearest indication of a recognitional object oc-
curred at the meeting on March 23 when Madden, in re-
sponse to Kota's inquiry as to what it would take to
settle the matter, stated, "Sign the book " See Carpenters
Local 745 (James W. Glover, Ltd.), 178 NLRB 684 fn. 1
(1969), enfd. 450 F.2d 1255 (9th Cir. 1971); Plumbers
Local 129 (Gross Plumbing), 244 NLRB 693 (1979), Elec-
trical Workers IBEW Local 211 (Atlantic Authority), 248
NLRB 168, 173 (1980) Even if, as Respondent contends,
Madden did not say that but rather said, "Pay the book,"
a recognitional object is demonstrated. "The book" was
understood by all to be the National Master Freight
Agreement along with the Central States Local Cartage
Supplement "word for word " Although some evidence
indicates that in outlying areas of the territorial jurisdic-
tion of Local 544 some collective-bargaining agreements
vary from the standard agreement, and that some em-
ployers in other areas and States have negotiated collec-
tive-bargaining agreements with Teamsters unions which
vary from that norm, there is no evidence that that has
occurred in and around Minneapolis and St. Paul.
Madden was clear on the point that the National Master
Freight Agreement with the Central States Local Cart-
age Supplement is the area standard for the Twin Cities
which the Union was attempting to enforce by its picket-
ing. In answer to a question from the bench, he indicated
that a nonsignatory employer could not meet area stand-
ards by paying a lower than contract wage rate while
granting higher than contract fringe benefits. Although
Respondent's counsel asserted that this was factually in-
accurate, he was not the witness, and in any case Mad-
den's answer reflects his intentions in pursuing the dis-
pute with BHD This testimony of Madden and the evi-
dence that the pay and benefits terms he sought were the
union contract "word for word" belie his position in the
March 21 telegram to BHD that "Your total labor cost
for drivers and warehousemen is below that which has
been negotiated with other carriers in the area " Mad-
den's real position was that not only total labor cost, but
each component of labor cost, must match the standard
union agreement Having an adequate total labor cost
would not suffice if the components of the package were
divided differently than prescribed by "the book " As in
Teamsters Local 456 (Construction City Corp.), supra, 233
NLRB 1418 at 1420, the Union here "is attempting to
engage in pro tanto bargaining to gain benefits for em-
ployees which it does not claim to represent" and in ro
doing demonstrates its recognitional object. See al;
Retail Clerks (State-Mart), 166 NLRB 818, 823 (1967)
enfd 404 F.2d 855 (9th Cir 1968), Local Joint Executive
Board (Holiday Inns of America), 169 NLRB 683, 684
(1968), NLRB v. Electrical Workers IBEW, 604 F.2d
1091, 1097 (8th Cir 1979).
Local 544 continued with its picketing campaign with
knowledge gained at the March 23 meeting that BHD
was paying employees $10 per hour, clearly less than the
$12.74 per hour provided for in the standard union
agreement, but with attractive fringe benefits as indicated
by the two documents handed Madden in that meeting.
Whether, as an entire package, this is more or less than
the Union's standard agreement is not apparent from this
record because the union agreements were not offered.
Given the circumstances here, I find the Union's pur-
pose was to require BHD to put into effect the identical
employment terms and benefits set out in the National
Master Freight Agreement with the Central States Local
Cartage Supplement, which was the collective-bargain-
TEAMSTERS LOCAL 544 (BETTER HOME) 171
ing agreement between the Union and other local cart-
age haulers in the Minneapolis-St. Paul area That re-
quirement reflects a purpose to impose a collective-bar-
gaining relationship on BHD and its employees. Local
Joint Executive Board (Holiday Inn of Las Vegas), supra
As the Supreme Court stated in NLRB v. Ironworkers,
434 U.S. 335, 341-342 fn. 7 (1978),
A type of activity frequently found to violate Sec-
tion 8(b)(7) is picketing ostensibly for the purpose
of forcing an employer to abide by terms incorpo-
rated into agreements between the union and other
employers Even in cases where the union expressly
disavows any recognitional intent, acceptance of the
uniform terms proposed by the union can have the
"net effect" of establishing the union "as the negoti-
ator of wage rates and benefits " Centralia Building
& Construction Trades Council v. NLRB, 124 U.S.
App D.C. 212, 214, 363 F.2d 699, 701 (1966)
These findings are reinforced by the Union's notice to
members on March 29, indicating its campaign was to
preserve "these union jobs," namely, at the distribution
center
Although there is no evidence here of customary orga-
nizing by the Union among BHD employees, and in fact
Madden in effect disclaimed any interest in organizing
them during the meeting on March 22, the picketing nec-
essarily had an impact on them which was in furtherance
of an organizational object because it was the Union's
tool for negotiating their wage rates and benefits wheth-
er or not they so desired, thereby forcing or requiring
the employees to accept the results of the Union's ef-
forts
Based on the foregoing, I find that Respondent violat-
ed Section 8(b)(7)(C) of the Act by its picketing of BHD
at the distribution center for more than 30 days where an
object of the picketing was recognitional and organiza-
tional and without petitioning the Board for a representa-
tion election
CONCLUSIONS OF LAW
1 Better Home Deliveries, Inc. and Target, Inc are
employers within the meaning of Section 2(2) of the Act
and engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Respondent Union, Over-the-Road, City Trans-
fer, Cold Storage, Grocery and Market Drivers and
Helpers, Inside Employees, Local Union No. 544, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act
3. By picketing Better Home Deliveries, Inc , for more
than 30 days from March 22, 1983, with an object of
forcing or requiring Better Home Deliveries, Inc, to rec-
ognize or bargain with the Union as the representative of
its employees and forcing and requiring such employees
to accept or select the Union as their collective-bargain-
ing representative without filing a petition under Section
9(c) of the Act, Respondent Union engaged, and is en-
gaging in , unfair labor practices within the meaning of
Section 8 (b)(7)(C) of the Act.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(b)(7)(C) of the Act, I
recommend it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Over-the-Road, City Transfer, Cold
Storage, Grocery and Market Drivers and Helpers,
Inside Employees, Local Union No. 544 affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Minneapolis,
Minnesota, its officers, agents, and representatives, shall:
1. Cease and desist from picketing, or causing to be
picketed, Better Home Deliveries, Inc., where an object
thereof is forcing or requiring such employer to recog-
nize or bargain with Respondent as the collective-bar-
gaining representative of its employees, or forcing or re-
quiring employees of such employer to accept or select
Respondent as their collective-bargaining representative
at a time when Respondent is not certified as such repre-
sentative and where such picketing has been conducted
without a petition under Section 9(c) being filed within a
reasonable time not to exceed 30 days from the com-
mencement of such picketing
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act
(a) Post at its business office copies of the attached
notice marked "Appendix "4 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
members are customarily posted Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al
(b) Furnish the Regional Director for Region 18
signed copies of said notice for posting by Better Home
Deliveries, Inc., if willing, in places where notices to em-
ployees are customarily posted
6 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket or cause to be picketed Better
Home Deliveries, Inc , where an object thereof is forcing
or requiring such employer to recognize or bargain with
us as a collective-bargaining representative, or forcing or
requiring employees of such employer to accept or select
us as their collective-bargaining representative , at a time
when we are not certified as such representative and
where such picketing has been conducted without a peti-
tion under Section 9(c) of the Act being filed within a
reasonable period of time not to exceed 30 days from the
commencement of such picketing.
OVER-THE-ROAD, CITY TRANSFER, COLD
STORAGE, GROCERY AND MARKET DRIV-
ERS AND HELPERS , INSIDE EMPLOYEES,
LOCAL UNION No. 544, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA