Teamsters, Local 326

National Labor Relations Board - Board Decisions

May 31, 1973

203 N.L.R.B. 1002 (N.L.R.B. 1973)

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Teamsters Local 326, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America ' and Eazor
Express, Incorporated and Chrysler Corporation 2
and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Lo-
cal No. 299 3 and International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers
of America, Local No. 377.• Case 4-CD-301
May 31, 1973
DECISION AND DETERMINATION OF
DISPUTE
CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
This is a proceeding under Section 10 (k) of the
National Labor Relations Act, as amended, following
charges filed by Eazor Express, Incorporated , herein
called the Employer, alleging that General Teamsters
Local 326, affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America, herein called Local 326, had violated
Section 8(b)(4XD) of the Act with an object of forcing
or requiring the Employer to assign the work in dis-
pute to members of Local 326 rather than to employ-
ees of the Employer represented by International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Locals Nos. 299 and
377, herein called Local 299 and Local 377. A duly
scheduled hearing was held on February 7, 1973, at
Philadelphia, Pennsylvania, before Hearing Officer
Joseph C. Kelly. All parties appeared at the hearing
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to adduce
evidence on the issues . Thereafter, briefs were filed by
the Employer and Local 326.
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 reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed . The Board has considered the entire record
in this proceeding , including the briefs, and hereby
makes the following findings:
The name of Respondent appears as amended at the hearing.
2 The name of this party appears as amended at the hearing
3 The name of this party appears as amended at the hearing
4 The name of this party appears as amended at the hearing.
I THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer is a Pennsylvania corporation licensed by the
Interstate Commerce Commission to engage in, and
it is engaged in, the transportation of general and
special commodities by motor truck, that it operates
approximately 60 terminals in 15 States of the United
States , that during 1972 its gross receipts exceeded $30
million , and that, during that same period, it has per-
formed trucking services valued in excess of $50,000
for Chrysler Corporation through deliveries of goods
from Chrysler Corporation's Detroit, Michigan,
plants to locations in the State of Delaware. The par-
ties further stipulated, and we find, that Chrysler Cor-
poration is a Delaware corporation engaged in the
manufacture of automobiles and that during 1972
Chrysler Corporation has shipped goods valued in
excess of $ 1 million from its Detroit, Michigan, plants
to points located outside the State of Michigan. Ac-
cordingly, we find that the Employer and Chrysler
Corporation are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
it will effectuate the policies of the Act to assert juris-
diction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Locals 299,
326, and 377 are labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE DISPUTE
A. Background Facts
The Employer and Teamsters Locals 299 and 377
are parties to the "National Master Freight Agree-
ment and Central States Areas." The Employer main-
tains motor truck terminals in various areas of the
United States, including Philadelphia, Pennsylvania.
It is also a party to a collective-bargaining agreement
with Philadelphia, Pennsylvania, Teamsters Local 107
entitled "National Master Freight Agreement and
Philadelphia, Pa. & Vicinity," to which is appended as
part of that agreement "Local Cartage and Over-The-
Road Supplemental Agreements." Pursuant to that
agreement, the Employer utilizes, and always has uti-
lized, members of Local 107 for its local cartage work.
It has never employed members of Teamsters Local
326, which also is a party to the latter agreement. In
the past 7 years, members of Locals 299 and 377 em-
ployed by the Employer have hauled auto parts from
Chrysler's Detroit, Michigan, plants directly to
Chrysler's Newark, Delaware, assembly plant where
203 NLRB No. 154
TEAMSTERS , LOCAL 326
they performed all of the work relating to final deliv-
ery, including backing their trucks into the plant's
docks, opening and closing the trailer doors, blocking
the wheels, and handling the necessary freight bills.'
Presently, the Employer averages two or three such
deliveries daily, utilizing approximately 50 of its over-
the-road drivers, some of whom own their rigs,6 and
all of whom are members of either Local 299 of De-
troit or Local 377 of Youngstown, Ohio.
At 6 a.m. on Friday, September 25, 1972, a picket
line was established in front of the main gate of the
Newark plant by members of Local 326, some of
whom carried placards stating that the four (trucking)
companies named therein, which included the Em-
ployer, were "unfair." An hour later, the plant's per-
sonnel manager arrived at the picket line where he
met Sheeran, president of Local 326, who told him
that Local 326 had no quarrel with Chrysler, only with
the four named companies because they "hauled ma-
terial into the plant," and that there would be no
violence unless Chrysler attempted to "sneak material
into another gate." Sheeran elaborated, in substance,
that the Employer was involved in the picketing be-
cause Local 326 wanted the work of "covering the
body," that is, by replacing the Employer's over-the-
road driver with a "city man," a member of Local 326,
who, at some point near the plant, or the plant's dock,
would take over the truck and make the final delivery
at the plant .7 Sheeran also denied the manager's re-
quest for time to attempt settlement of the matter,
stating that the four companies involved had been
aware of Local 326's demand for over a month, that
Local 326 members "were pretty hot about the situa-
tion having dragged on as long . . . and that the line
was going to stay there until it was resolved."
At or around this time , Groves, a member of Local
377 employed by the Employer, arrived at the plant
on his weekly run from Detroit and attempted to enter
the gate in order to make final delivery, as he had
done for the past 7 or 8 years. He was prevented from
doing so, however, by five or six pickets who blocked
his way. Groves thereupon parked his truck outside
the gate. A short time later, he was joined by Gardner,
a Local 299 member employed by the Employer who
had entered the plant a day prior to the picketing and
was.then leaving the plant after having delivered his
load to the dock, as he had done for the past several
years. They then spoke with the pickets who stated
s Some of the Employer's drivers had performed all of the foregoing work
for a period of several years while employed by Daniels Motor Freight, which
had provided Chrysler with those services prior to the Employer's acquisition
of Daniels in 1967.
6 There is no contention that the owner -drivers are not employees within
the meaning of the Act.
7 The record shows that Local 326's claim to the disputed work includes
not only the plant area , but extends to any point within its jurisdiction.
1003
that they wanted the Employer to put a "city man" on
the dock and "in Newark, Delaware," that they were
picketing because the Employer refused to comply
with their demands, and that Chrysler would have to
shut down "within a couple of hours" because no
trucks would cross the line.
At or about 2 p.m., Chrysler attempted to isolate,
and thereby free itself of, the dispute by establishing
a reserve gate. The pickets, however, ignored that gate
and continued to picket the main gate. Consequently,
no deliveries were made that day, as contrasted with
a norm of approximately 30 deliveries daily, and, true
to the strikers' prediciton, the effect of the picketing
was to bring the plant within a few hours of shutting
down.
Chrysler officials then instructed the plant manage-
ment to cease doing business with the Employer until
the dispute was resolved, and also made clear to the
Employer's president that the Employer would be cut
out of the Newark run until such resolution. Although
the pickets were removed the next day, the Employer
made no deliveries to the Newark plant until Novem-
ber 10, 1972, when injunctive relief was obtained.
Chrysler then resumed doing business with the Em-
ployer, whose drivers have since performed the dis-
puted work.
The record further shows that, at some unspecified
time subsequent to the cessation of the picketing. "a
grievance has been filed with [Local] 326 pursuant to
the Agreement." The record does not disclose the na-
ture of the grievance or whether it concerns the pre-
cise work in dispute or, if so, whether it covers all of
the disputed work.
B. The Work in Dispute
The work in dispute concerns the employment of a
"city man" at some point within the jurisdiction of
Local 326 8 in place of an over-the-road driver to ef-
fectuate final delivery of the truck's cargo by driving
the truck to Chrysler Corporation's Newark, Dela-
ware, assembly plant delivery or receiving docks,
opening and closing tractor doors, blocking the
wheels, handling the necessary freight bills, doing
whatever else is necessary to accomplish a final deliv-
ery, and driving the truck out of the dock to an
agreed-upon point of replacement. There is no dispute
with regard to unloading or loading the trucks at the
Newark plant, which is done by Chrysler employees
who are members of labor organizations other than
those involved herein.
8 According to Local 326 , its territorial jurisdiction covers Newark, Dela-
ware.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Positions of the Parties
Locals 299 and 377 asserted, through their counsel,
that those unions are not claiming the work in dispute
for their members and, therefore, no jurisdictional
dispute exists, and that those unions "don't care what
the Board does with this work."
Local 326 also contends that there is no jurisdic-
tional dispute because of the disclaimer of the disput-
ed work by Locals 299 and 377. It further argues, in
substance, that if a dispute exists then a Board hearing
and determination thereof is unnecessary because re-
solution of the dispute may be had through internal
union procedures. In similar vein, Local 326 claims
that the "National Master Freight Agreement and
Philadelphia, Pa. & Vicinity . . '. Local Cartage and
Over-The-Road Supplemental Agreements" estab-
lishes a contractual relationship between it and the
Employer, that that agreement contains a grievance
procedure culminating in binding arbitration, that it
has filed a grievance thereunder, that the parties will
be bound by the results of that grievance, and that this
constitutes an agreed-upon method of resolving the
dispute, thereby eliminating the necessity of Board
intervention. Local 326 also contends that, assuming
the existence of a dispute, its members are entitled to
the disputed work on the basis of certain provisions
of the aforesaid agreement.
The Employer contends that a dispute exists. It
further contends, in substance, that it has bargaining
agreements with various Teamsters local unions only
in those areas in which it has a terminal, and that
while both Local 326 and Local 107 are located in
Philadelphia, Pennsylvania, where it has a terminal,
its bargaining agreement in that area is with Local
107. It contends that it does not have, and never has
had, any contractual relationship with Local 326. It
contends that the dispute has not been voluntarily
adjusted, that there is no agreed-upon method of re-
solving the dispute by which all of the parties would
be bound, and that all of the jurisdictional prerequi-
sites necessary exist for the Board to make an affirma-
tive award of the disputed work. The Employer urges
the Board to affirm its assignment of the disputed
work to its employees represented by Locals 299 and
377 on the bases of its preference, its collective-bar-
gaining agreements with Locals 299 and 377, and its
skills, past practice, and efficiency.
Chrysler Corporation has taken no position with
regard to the disputed work.
D. Applicability of the Statute
Before the Board may proceed to a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated.
As previously set forth, members of Local 326 en-
gaged in picketing for the declared purpose of com-
pelling the Employer to reassign the disputed work to
its members.
As to the contention that no dispute exists because
Locals 299 and 377 have disclaimed the work, "the
applicability of Section 10(k) is not dependent upon
`the existence of a dispute between two or more
groups of employees actively competing for the work
assignment'."9 Further, as in Pocahontas Steamship
Company,1 ° the purported disclaimer imposes no
hardship and involves no sacrifice or "giving up" by
members of those locals because their employment
still would be required for the operation of the vehicle
from its point of origin. Moreover, Teamsters mem-
bers of both Locals 299 and 377 clearly stated that
they desired to continue to perform the disputed
work. Furthermore, members of those local unions
have continued to perform that work without re-
straint, discipline, or threats thereof from their locals.
Accordingly, we find that the Teamsters purported
disclaimer is not effective to extinguish the jurisdic-
tional dispute between members of the competing
Teamsters locals.
We also find no merit in Local 326's suggestion that
the Board need not hear or determine the dispute
because resolution thereof may be gotten through in-
ternal union procedures. We have consistently held in
our 10(k) determinations that the employer control-
ling the work assignment as well as the rival unions
involved comprise the parties to a dispute, and that all
of the parties must approve and enter into a voluntary
adjustment procedure in order to preclude a hearing
and determination pursuant to that section of the
Act." Here, there is no evidence that the Employer
has agreed to participate in or be bound by such
internal procedure. Further, as will be discussed infra,
the record does not clearly and definitively establish
the existence of a bargaining agreement between the
Employer and Local 326. Moreover, even assuming
the existence of such an agreement, there is no evi-
dence that the grievance which Local 326 filed against
9 Local 40, International Brotherhood of Electrical Workers, AFL-CIO (F
B Ceco of California, Inc.), 199 NLRB No. 128.
10 Local 1291, International Longshoremen's Association, AFL-CIO (Poc-
ahontas Steamship Company), 152 NLRB 676, 679
11 N L R B. V. Plasterers' Local Union No 79, Operative Plasterers' & Ce-
ment Masons' International Association, AFL-CIO, 404 US 116; Local 470,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America (H Perilstein Glass Company), 194 NLRB No. 64; Local 157,
United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO (L & K Contract-
ing Company, Inc), 186 NLRB 1103, Lathers Union Local 104, The Wood,
Wire and Lathers International Union, AFL-CIO (The Blaine Petty Company),
186 NLRB 365.
TEAMSTERS , LOCAL 326 1005
the Employer under that assumed agreement pertains
to the disputed work. In addition, the record does not
show that Locals 299 or 377 are parties to any agree-
ment with Local 326. Therefore, we cannot find, as
Local 326 contends, that the dispute can be resolved
through a grievance procedure or that the parties have
entered into a voluntary adjustment procedure, as re-
quired by Section 10(k). Accordingly, we find that the
Board is not precluded from making its determination
in this proceeding, that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has oc-
curred, and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
E. Merits of the Dispute
We shall, in conformity with the J. A. Jones case 12
and pursuant to the Supreme Court's C.B.S. deci-
sion,13 determine in this proceeding presented for res-
olution under Section 10(k) of the Act the appropriate
assignment of the disputed work after giving due con-
sideration to the various relevant factors involved.14
1. Collective-bargaining agreements
As stated earlier, the Employer is a party to the
"National Master Freight Agreement and Central
States Area," effective April 1, 1970, to June 30, 1973,
by virture of its membership in Motor Transport La-
bor Relations, Inc., an employer association which
represents many employers and which is signatory to
the agreement. Its contractual relationship with Lo-
cals 299 and 377 is established through that agreement
which contains a rider entitled, "Central States Area
Iron and Steel and Special Commodity Rider," which
is effective for the same period as the National Agree-
ment and which covers variously listed Central Area
States. The States of Pennsylvania and Delaware are
not among the States listed. Article 52 of that agree-
ment, on which the Employer relies, entitled "Pickup
and Delivery Limitations" is contained in the rider
portion thereof and provides in pertinent part that
"The operations shall be shipper to consignee or inter-
line except that one pickup of a solid load at point of
origin and one delivery of a solid load at point of
destination shall be allowed...."
Motor Transport Labor Relations, Inc., and Locals
12 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A
Jones Construction Company), 135 NLRB 1402.
13 N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad-
casting System], 364 U.S. 573.
14 The parties stipulated that the Employer is not failing to conform to a
Board order or certification determining the bargaining agent of the employ-
ees performing the work in dispute
107 and 326, among other locals, are parties to the
"National Master Freight Agreement and Philadel-
phia, Pa. & Vicinity." Motor Transport also is signa-
tory to the "Local Cartage and Over-The-Road
Supplemental Agreements" which are appended to
the foregoing agreement. All these agreements also
are effective from April 1, 1970, to June 30, 1973. The
Local Cartage supplemental agreement covers, inter
alia, "all wages and conditions" and "all local dock
work. . .and local operations within a radius of forty
(40) miles . . .from the Employer's terminal for those
companies whose terminal is located in the City of
Philadelphia shall be measured from City Hall." The
Over-The-Road supplemental agreement provides, in
pertinent part, that no provision thereof shall super-
sede any provision of the Local Cartage supplemental
relating to pickup and delivery, that "Road drivers
taking a load from point of orgin to destination in
excess of sixty (60) miles shall not make any deliveries
of a solid load. . .where an Employer has a terminal
or operation in the city area" with certain exceptions
between a 20- and 40-mile radius, and that "The pre-
vailing Local Union City Cartage Agreement shall
govern all wages and conditions on runs exclusively
within a radius of forty (40) miles. These restrictions
on city or local work are applicable in all areas in
which the Employer has terminals or makes pickups
or deliveries in connection with over-the-road opera-
tions."
Both supplemental agreements provide that "This
Agreement shall cover all classifications of employees
hereinafter referred to or subsequently covered who
are employed by any Employer (which includes Em-
ployers listed on Exhibit `A')" as well as any Employ-
er who subsequently may become a party to the
agreement . Exhibit A lists the names of the contractu-
ally bound local unions and employers by listing the
employers under a specifically captioned local. Many
employers, including the Employer, which admittedly
is in contract with Local 107, are listed under the
caption, "Local No. 107 Employers." The Employer
is not among those employers listed under the cap-
tion, "Local No. 326 Employers."
While it is arguable that the foregoing contractual
language and the Employer listings in Exhibit A may
not conclusively establish that a contractual relation-
ship does not exist between Local 326 and the Em-
ployer, the record contains other evidence indicating
an absence of a contractual relationship between
these parties. Thus, Sheeran stated that there are ap-
proximately eight trucking companies, including the
Employer, which use over-the-road drivers to service
the Newark, Delaware, plant, and that five of those
eight utilize members of Local 326 as "city men" to
effectuate final delivery at the plant. Sheeran also
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified, however, that those five companies have ter-
minals, or a facility, in Delaware, and that they are
listed in Appendix A as Local 326 employers. He
further stated that the only companies employing
long-haul drivers who make final delivery to the plant
are the Employer, Associated, and Interstate Truck
and that none of these concerns have terminals in
Delaware or are listed in Exhibit A as Local 326 em-
ployers.
Sheeran claims that Associated began using Local
326 members as "city men" in 1972 by virtue of a
ruling by the Eastern Conference to the effect that
"Delaware 326 has the jurisdiction." No probative
evidence, however, was introduced to substantiate
this naked claim. The record further shows that Sheer-
an confused Interstate Truck with Interstate System,
which is listed as a Local 326 employer, and that he
admitted, "We have a contract with System. We don't
have it with Truck."
Moreover, the claim of Local 326_ that a contract
covering the disputed work exists between the Em-
ployer and Local 326 must be measured against the
actualities, which show that members of Local 326
neither performed that work for the Employer subse-
quent to the effective date of the agreements, nor
relied on those agreements for over 2 years. Converse-
ly, the Central States rider on which the Employer
relies does not contain specific language covering the
disputed work and, in addition, does not include Del-
aware among the States listed therein as the applica-
ble territories covered by the rider. In view of all of
the foregoing, it appears that the respective agree-
ments merely corroborate the claims of the disputants
and do not clearly and uniformly favor or disfavor
any party.
2. Skill and efficiency
There is nothing in the record to indicate that mem-
bers of the competing labor organizations cannot per-
form the disputed work with equal skill. About 60
percent of the Employer's 50 drivers who are involved
in the run to the Newark plant, however, are owner-
operators. Two of those owner-operators testified
that, because of the substantial investment which they
have in their rigs, 15 they would not, under any circum-
stances, let anyone else operate their rigs. It would
appear, therefore, that an award of the disputed work
to members of Local 326 could result not only in a
continuation of the dispute, but also would require the
Employer to displace experienced employees capable
of performing all of the work involved with persons
who seek to perform only part of the work, and there-
13 One such owner -operator stated that he has $47,000 tied up in his rig.
by curtail the Employer's efficiency , economy, and
flexibility of operations . These factors favor an award
to members of Locals 299 and 377.
3. Area, company, and past practice
As indicated above, the record shows in this regard
that the over-the-road drivers employed by approxi-
mately eight companies service the Newark, Dela-
ware, plant, and that, while slightly more than half of
those companies employ Local 326 members as "city
men" to perform the disputed work, slightly less than
half also perform that work with their employees who
are members of Locals 299 and 377. We cannot find
that so narrow a margin militates in favor of an award
to Local 326.
On the other hand, over-the-road drivers formerly
employed by Daniels Motor Freight have performed
the disputed work for years prior to the Employer's
acquisition of Daniels in 1967, and members of Locals
299 and 377 employed by the Employer have consis-
tently performed that work since 1967. These factors
also favor an award to members of Locals 299 and
377.
Conclusion
Having considered all pertinent factors herein, we
conclude that employees represented by Locals 299
and 377 are entitled to perform the work in dispute.
In making this determination, we are assigning the
disputed work to employees of the Employer who are
represented by Teamsters Locals 299 and 377, but not
to those Unions or their members. Our present deter-
mination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of Eazor Express, Incorporated, who
are represented by International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local No. 299, and by International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local No. 377, are enti-
tled to perform the work involved in the final delivery
of goods to Chrysler Corporation's Newark, Dela-
ware, plant, including driving over-the-road trucks to
the plant's delivery or receiving docks, opening and
closing trailer doors, blocking the wheels, handling
TEAMSTERS , LOCAL 326
the necessary freight bills, doing whatever else is ne-
cessary to accomplish final delivery , and driving the
truck out of the plant docks.
2. General Teamsters Local 326 , affiliated with In-
ternational Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, is not enti-
tled by means proscribed by Section 8(b)(4)(D) of the
Act to force or require Eazor Express , Incorporated,
to assign the disputed work to individuals represented
by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute , General Teamsters
Local 326, affiliated with International Brotherhood
1007
of Teamsters , Chauffeurs, Warehousemen and Help-
ers of America , shall notify the Regional Director for
Region 4, in writing, whether or not it will refrain
from forcing or requiring Eazor Express, Incorporat-
ed, to assign the work in dispute to individuals repre-
sented by General Teamsters , Chauffeurs,
Warehousemen and Helpers of America , rather than
to employees of Eazor Express, Incorporated , who are
represented by International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of
America , Local No . 299, and by International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , Local No. 377.