Teamsters, Local 804

National Labor Relations Board - Board Decisions

Oct 30, 1972

199 N.L.R.B. 1167 (N.L.R.B. 1972)

TEAMSTERS, LOCAL 804
Local 804, Delivery and Warehouse Employees , Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and B. F.
Goodrich Company . Case 29-CC-298 ,
October 30, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 6, 1972, Administrative Law Judge I
Abraham H. Mailer issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, Respondent filed a
brief in opposition to the General Counsel's excep-
tions, and the Charging Party filed a brief in support
of the General Counsel's exceptions.
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
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as' its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
1 The title of "Trial Examiner " was changed to "Administrative Law
Judge" effective August 19, 1972.
1167
each of various facilities or yards of the Baltimore and Ohio
Railroad, herein referred to as B & 0, on occasions when
employees of Byrnes Express and Trucking Co., Inc., herein
called Byrnes, were present to load Goodrich's goods and
materials on Byrnes' trucks, in violation of Section 8(b)(4)(i)
and (u)(B) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly
filed answer, the Respondent denied any violations of the
Act and alleged affirmatively that Goodrich, B & 0, and
Byrnes have attempted to have, and have had, employees of
B & 0 and Byrnes perform work which is normally per-
formed in Goodrich's premises by Goodrich's employees
represented by the Union. Pursuant to notice, a hearing was
held before me at Brooklyn, New York, on March 22, 1972.
All parties were represented at the hearing and were afford-
ed full opportunity to be heard, to introduce relevant evi-
dence, to present oral argument, and to file briefs with me.
Briefs were filed on and before May 1, 1972. Upon consider-
ation of the entire record, the briefs, and upon my observa-
tion of each of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE CHARGING PARTY
Goodrich is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of, the laws of the State of New York. At all times material
herein, Goodrich has maintained its principal office and
place of business at 2455 Forest Avenue, in the Borough of
Staten Island, city and State of New York, herein variously
called the Staten Island Distribution Center or warehouse,
where it is, and has been at all times material herein, en-
gaged in the wholesale sale and distribution of tires and
related products. During the year preceding the filing of the
complaint, which period is representative of its annual oper-
ations generally, Goodrich, in the course and conduct of its
business operations sold and distributed at its Staten Island
Distribution Center products valued in excess of $50,000, of
which products valued in excess of $50,000 were shipped
from said place of business in interstate commerce directly
to States of the United States other than the State in which
it is located and in foreign commerce to foreign countries.
II THE LABOR ORGANIZATION INVOLVED
TRIAL EXAMINER'S DECISION
ABRAHAM H. MALLER, Trial Examiner: On December
9, 1971, B. F. Goodrich Company, herein called Goodrich,
filed a charge against Local 804, Delivery and Warehouse
Employees, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
variously called the Respondent or the Union. Upon said
charge, the Regional Director for Region 29 of the National
Labor Relations Board, herein called the Board, on Decem-
ber 30, 1971, issued on behalf of the General Counsel a
complaint against the Respondent, alleging that Respon-
dent had a labor dispute with Goodrich concerning the
terms and conditions of.a new collective-bargaining,agree-
ment for Goodrich's warehouse employees; that thereafter
the Respondent authorized and established a picket line at
Local 804, Delivery and Warehouse Employees, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III THE ISSUE
Whether Byrnes was a neutral employer.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union represents Goodrich's warehouse employ-
ees employed at its Staten Island Distribution Center, and
199 NLRB No. 185
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has been engaged since October 20, 1971, in a lawful prima-
ry strike over the terms of a new contract for such employ-
ees. The warehouse is adjacent to a B & 0 freight yard,
called the Arlington Yard. A railroad spur runs from the
yard to the rear of the warehouse. There is a truck loading-
unloading dock at the front entrance of the warehouse. In
the ordinary course of its operations, Goodrich receives
railroad shipments of tires and related products which are
brought through the spur to the rail dock by B & O. The
freight cars are then unloaded and the freight is moved into
the warehouse for storage by Goodrich warehouse employ-
ees. Merchandise is stored at, and distributed from, the
warehouse for both domestic and foreign (export) delivery.
Goods destined for delivery within the continental United
States are shipped either by rail or by truck. Approximately
90 percent of the goods shipped from the warehouse is
destined for foreign points. Until about 3 years ago, Good-
rich used to ship a sizable quantity of freight to the piers by
rail, using the B & 0 for these shipments. In recent years,
however, goods have been shipped directly to the piers from
the Goodrich warehouse by truck. The primary trucker of
this operation has been Byrnes.
In connection with rail shipments to various points in
continental United States, the goods to be shipped were
moved from their place of storage in the warehouse to the
rail loading platform and into the waiting railroad car by
Goodrich warehousemen. In the case of truck shipments,
the goods to be shipped were moved from their place of
storage in the Goodrich warehouse to the tailgate of the
truck or trailer at the loading dock.' The greater extent of
the loading of the trucks and truck-trailers was done by the
truckers' employees. However, at times the Goodrich ware-
housemen drove their lift trucks into the trailer and depos-
ited the load there .2 Also, in the case of crated material the
lift-truck operator would drop the crate on the tailgate of
the truck or trailer and then push the crate into the vehicle.
A similar operation was on occasion performed with regard
to the loading of loaded pallets.
The testimony is conflicting as to the extent and fre-
quency with which the Goodrich warehousemen partici-
pated in the loading of trucks and truck-trailers. The
witnesses for the General Counsel, while conceding that the
Goodrich warehousemen participated in such loading, have
attempted to minimize the amount of such participation.
Conversely, Respondent's witnesses have attempted to
maximize Goodrich warehousemen's participation. I find
that, while the greater part of the loading was performed by
Byrnes' employees, a substantial amount was performed as
stated above by the Goodrich warehousemen.
Since the onset of the strike in October, the Union has
established and maintained a picket line at the warehouse.
The warehouse operation has remained essentially the same
1 The shipments consist of passenger and off -the-road tires (some as high
as 8 feet and weighing as much as 3,000 pounds ) and baled and crated
material.
2 In this respect , there is testimony that the beds of some of the Byrnes'
trucks are in such poor shape that they will not stand the weight of a
lift-truck . However , there is uncontradicted testimony that Byrnes, in addi-
tion to its own trucks , uses rented trucks whose beds can withstand the weight
of the lift-trucks. The extent to which Byrnes used rental trucks is not dis-
closed.
as before the strike, except that all work normally per-
formed by the warehousemen is currently being performed
by Goodrich supervisory personnel . Goods to be shipped by
rail to points within the continental United States have been
moved from their place of storage in the warehouse to the
rail loading dock and into the waiting railroad cars by
Goodrich supervisors. However, with respect to shipments
to be made by truck, the trucking companies' drivers have
refused to cross the Respondent's picket line. As a result,
Goodrich made the arrangements hereinafter described.
On December 3, Goodrich arranged with B & 0 and
Byrnes to have B & 0 railcars hauled to the Goodrich rail
dock where the goods to be shipped to the piers would be
moved from their place of storage in the warehouse and
loaded into the railroad cars by Goodrich supervisors. B
& 0 would then pull the loaded cars to the nearby Arling-
ton Yard where they would be placed on B & O's "team
tracks,"3 At this point, Byrnes trucks would pull up to the
railroad car, unload the car, load the material into the
trucks, and deliver the material to the pier.
On December 6, pursuant to the above arrangement,
goods to be shipped to a pier were loaded onto four B & 0
freight cars at the Goodrich siding by Goodrich supervisory
employees and taken from the om e warehouse to the Ar-
lington "team tracks" by B & O. On December 7, Byrnes
trucks arrived at the Arlington "team tracks" where the
loaded B & 0 cars were waiting. As the Byrnes employees,
who are represented by Local 816 of the IBT, prepared to
unload the railroad cars and load the goods aboard their
trucks, they were confronted by Respondent's shop steward,
John Hornack. Hornack asked Thomas Smith, the Byrnes
employee in charge of the operation, what they were doing
at the railroad yard. Smith told Hornack that they were to
unload the cars, load them onto their trucks, and take them
to the pier. Hornack then told Smith that this was
Respondent's work. When Smith replied that he did not see
a picket sign, Hornack produced one which stated `B. F.
Goodrich On Strike-Local 804." Notwithstanding the
picket sign and Homack's statements , Byrnes' employees
commenced unloading the cars and loading the goods onto
their trucks. During the course of the day, Hornack told
Smith that he had contacted the Joint Teamster Council 16
'and had been informed that Smith was to reload the goods
onto the freight cars. Hornack also told Smith that he was
going to set up a picket line at the Arlington "team tracks"
the following day and threatened to take matters into his
own hands if Byrnes employees crossed this picket line.
Nevertheless, the Byrnes employees worked the full day and
unloaded the contents of two of the four railroad cars into
their trucks.
On December 8, Respondent picketed the Arlington
"team tracks." However, Byrnes did not send trucks to pick
up the goods on the remaining two cars.
Thereafter, Goodrich made arrangements with B & 0
to ship the two railcars at the Arlington Yard, plus two
additional freight cars loaded at the Goodrich warehouse by
supervisory employees, to the B & 0 "team tracks" at B &
3 "Team tracks" are railroad tracks that are available for use as sidings for
companies who ship or receive goods by rail but have no siding at their
premises
TEAMSTERS, LOCAL 804 1169
O's Cranford, New Jersey, freight yard, where they would
be unloaded and loaded into Byrnes trucks by Byrnes em-
ployees and taken to the pier.
On December 9, Byrnes employees arrived at the Cran-
ford Yard, where they were confronted by Hornack and
another striking warehouseman named Wilson who carried
a picket sign stating "Employees of B. F. Goodrich Local
804 On Strike." Hornack spoke with Walter Barnes, a
Byrnes driver and Local 816 shop steward, and told him
that Respondent was there to picket and asked if Barnes was
going to cross the picket line. Barnes replied in the negative.
He then called his supervisor, Albert Byrnes, and told him
that the employees would not cross the picket line. Albert
Byrnes told Barnes to return to New York. The Byrnes
employees returned to New York without unloading any of
the waiting railroad cars. Picketing continued at the Cran-
ford Yard on December 10, although Byrnes did not at-
tempt to pick up and deliver on that date.
During the week of December 20, Goodrich made ar-
rangements to have the railroad cars at Cranford Yard tak-
en to the "team tracks" at Raritan Industrial Center near
Edison, New Jersey.4 In addition to the six cars sent to
Raritan from Cranford, seven other railcars had been load-
ed by Goodrich supervisory personnel and also sent to Rari-
tan. The 13 cars were to be unloaded by Byrnes, loaded onto
Byrnes trucks, and taken to the pier.
On December 27, Byrnes' trucks arrived at Rantan to
pick up and deliver the Goodrich shipment. They were con-
fronted by Sal Caracappa, a striking warehouseman who
held up a sign stating "No Dispute With Any Other Em-
ployees, B. F. Goodrich On Strike, Local 804." The Byrnes
employees then told Albert Byrnes, who had accompanied
them, that they would not cross the picket line. Byrnes then
told his employees to return to New York, and they did so
without attempting to pick up and deliver the Goodrich
shipment.
On April 28, Albert Byrnes was informed by Barnes
and two other Byrnes employees that Byrnes employees
would not cross any Goodrich picket line.
Byrnes, B & 0, and Raritan are wholly owned indepen-
dent enterprises. There is no common ownership nor does
Goodrich control the manner in which each enterprise per-
forms its work. The relationship between Goodrich, on the
one hand, and Byrnes, B & 0, and Raritan, on the other
hand, are purely arm's-length business transactions between
separate independent contractors. Furthermore, at no time
material herein did Goodrich have any facility at the loca-
tions mentioned above, nor were any of Goodrich's employ-
ees working there.
B. Concluding Findings
The General Counsel and the Charging Party contend
that the Respondent picketed the three freight yards men-
tioned with an object to forcing Byrnes and B & 0 to cease
doing business with Goodrich. The Respondent contends
4 Raritan Industrial Center is a privately owned industrial park . Goodrich
has no facility at Rantan , nor does it have any employees working there.
6 No evidence was submitted of any union activities directed to B & 0 or
its employees. The issue therefore relates to the effect of the picketing only
upon Byrnes.
that Byrnes was not a neutral employer, but was an ally of
Goodrich doing struck work.
At first blush, the instant case would appear to be
governed by the Board 's recent decision in Local 61, Inter-
national Chemical Workers Union (Sterling Drug, Inc.), 189
NLRB 60, relied upon strongly by both the General Coun-
sel and the Charging Party. The facts in Sterling appear to
be similar to those of the instant case, except that the goods
involved moved in the reverse order, i.e., to the struck plant,
whereas in the instant case the goods were moving away
from the struck plant. However there is one crucial differ-
ence : In Sterling, the trucker did not do any struck
wprk,6 whereas in the instant case , Byrnes employees did all
of the loading of trucks and trailers , part of which had been
traditionally performed by the Goodrich warehousemen,
and unloaded the railroad cars, work which previously had
been performed by the striking employees. With regard to
the unloading of railroad cars, it is of no consequence that
the work done by the Goodrich warehousemen was per-
formed on incoming shipments at the warehouse, while now
the unloading was performed at team tracks on outgoing
shipments. As the Respondent contends, the situation
which the Respondent created by the use of the railroad cars
and team tracks was the same as if the Respondent had
rented warehouses to which it moved goods by rail and at
which Byrnes loaded its trucks. The fact remains that by
unloading the railroad cars, Byrnes was doing work previ-
ously performed by the Goodrich warehousemen. By doing
struck work, Byrnes had enmeshed itself in the primary
dispute, was not a neutral employer and, therefore, was not
entitled to the protection of Section 8(b)(4)(i) and (ii)(B) of
the Act. N.L.R.B . v. Business Mach. & Office APP. Conf. Bd.
(Royal Typewriter Co.), 228 F.2d 553, 558 (C.A. 2); Califor-
nia Laundry & Linen Supply, 164 NLRB 426; International
Die Sinkers Conference, 120 NLRB 1227. Accordingly, I
find and conclude that the Respondent did not violate Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act, and the complaint
should be dismissed.
CONCLUSIONS OF LAW
1. The Charging Party is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 804, Delivery and Warehouse Employees, In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The aforementioned labor organization has not en-
gaged in unfair labor practices within the meaning of the
Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
6 The Board noted: "It is clear that Vogel [the trucker] did not supplant
the work of any Sterling employees; all deliveries received by Sterling contin-
ued to be unloaded by Sterling employees." The same is true of Local 810,
Steel Metals, Alloys, and Hardware Fabricators, (Fein Can Corporation), 131
NLRB 59, also relied upon by the General Counsel, where it was noted-
there is no showing that Advance . .[the trucker] ever performed work
before or after the strike , customarily performed by Fein employees" (id at
63).
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER7
The complaint is dismissed in its entirety.
7 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations , and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings , conclusions , and Order, and all objections
thereto shall deemed waived for all purposes.