Teamsters Local 705 (Emery Air Freight)

National Labor Relations Board - Board Decisions

Mar 27, 1986

278 N.L.R.B. 1303 (N.L.R.B. 1986)

TEAMSTERS LOCAL 705 (EMERY AIR FREIGHT) 1303
Truck Drivers, Oil Drivers, Filling Station and Plat-
form Workers' Union, Local 705, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs , -Warehousemen and Helpers of
America and Emery Air Freight Corporation.
Cases 13-CC-1433 and 13-CC-1438
27 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 9 May 1985 Administrative Law Judge
Walter H. Maloney Jr. issued the attached decision.
The Respondent, the General Counsel, and the
Charging Party filed exceptions and supporting
briefs, and the Charging Party filed answering
briefs to the Respondent's and the General Coun-
sel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
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,' and
conclusions only to the extent consistent with this
Decision and Order.
Emery Air Freight (Emery) operates an over-
night air delivery service with terminals around the
world, including a Chicago terminal at O'Hare
International Airport. Until 12 October 1994,2
Emery subcontracted the pickup and delivery of
packages in the Chicago area to two drayage con-
tractors, Stepina Motor Service, Inc. (Stepina) and
Emergency Delivery, Inc. (EDI). For many years
Emery's warehousemen and truckdrivers at O'Hare
have been represented by the Respondent, and the
drivers of Stepina and EDI have been represented
by the Chicago Truck Drivers, Helpers, and Ware-
house Workers' Union, Independent (CTDU).
On, 15 October Emery moved its Chicago facility
from O'Hare International Airport to a new facility
near Des Plaines, Illinois. In contemplation of this
move, Emery, in the summer of 1984, undertook a
cost accounting of its Chicago operation and con-
cluded that it had to reduce drayage costs. As
Emery was unsuccessful in its negotiations with
' 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.
2 All dates are in 1984 unless otherwise noted
Stepina to reduce costs, Emery decided to termi-
nate its contract with Stepina.3
Emery investigated several options for replacing
Stepina, including increasing its own staff and
equipment to do the work itself. Emery decided,
however, that this option would be feasible only if
it used part-time drivers. Since its contract with the
Respondent required it to use only full-time driv-
ers, Emery entered into discussions regarding this
option with the Respondent, seeking the Respond-
ent's approval of Emery's use of part-time drivers.
When the Respondent did not agree to this option,
Emery, in late September or early October, signed
a contract -with DPD, a subsidiary of Ryder
Trucks, to replace Stepina.
As detailed in the judge's decision, the Respond-
ent's officials on several occasions threatened
Emery with a strike if the drayage work were done
by employees not represented by the Respondent
or by CTDU. On 4 'September the Respondent's
business agent Richard Volkmar' told Emery's vice
president ' Daniel Shea that if the company which
did the drayage work did not have a contract with
the Respondent or CTDU, Emery could expect "a
great deal of unrest and difficulty .... [T]he
company would be struck in Chicago and that
sympathy strikes would be solicited, elsewhere in
the country, specifically in New York and any-
where else that support could be gotten for them."
On 11 September Volkmar told Emery's service
manager Jack Harper that if Emery contracted the
drayage work to Ryder Trucks, whose employees
were represented by a maritime union, the Re-
spondent "would shut us [Emery] down and that if
it lasted for more than two days they would fill up
airplanes to New York and Los Angeles and shut
us down in those locations also." Later that after-
noon Volkmar again told Shea that if Ryder did
not have a contract with the Respondent or
CTDU, Emery would be struck. Volkmar repeated
this threat to Harper the next day.
On 15 October, the first day that Emery used its
Des Plaines facility and DPD as it drayage con-
tractor, Emery was picketed at that facility by
former Stepina employees carrying signs stating,
"Unfair to Organized Labor, Chicago Truck Driv-
ers, Helpers and Warehouse Workers Union (Inde-
pendent)" and "This Is An Authorized Informa-
tional Picket Line, Chicago Truck Drivers, Helpers
and Warehouse Workers Union (Independent)."4
3 Although Emery did not decide to terminate its contract with EDI,
Stepina did the great bulk of Emery's drayage work
4 The judge's decision does not accurately reflect the wording on the
picket signs.
278 NLRB No. 168
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the picketing began, Volkmar, the
Respondent 's president, John Navigato, and the
Respondent's shop steward, Jack Slattery, met with
all Emery's bargaining unit employees outside
Emery's facility. The employees voted not to cross
the CTDU picket line and remained off work until
19 October when CTDU ceased picketing Emery.
On 24 October the Respondent filed a grievance
against Emery, alleging that Emery violated article
13, section 2,5 of the contract "by contracting out
drivers' work to a company which is not paying
those employees area benefits and wages which are
received by drivers under the agreement." The
grievance was heard on 16 November by an "Eight
Man Board," which sustained the grievance.
Emery thereafter filed a Section 301 suit in Federal
district court seeking to overturn the decision of
the "Eight Man Board," and the Respondent filed
a counterclaim.
The General Counsel alleged that the Respond-
ent's threats, strike, and grievance against Emery
were violative of Section 8(b)(4)(ii)(B). The judge
found the threats and strike unlawful but, relying
on the Supreme Court's decision in Bill Johnson's
Restaurants v. NLRB, 461 U.S. 731 (1983), dis-
missed the allegation that the Respondent's griev-
ance violated the Act.
We agree with the judge that the Respondent's
threats to strike Emery violated Section
Art. 13, sec 2, states as follows-
Subcontracting
Section 2. For the purpose of preserving work and job opportunities
for the Employees of the signator Employer covered by this Agree-
ment, the signator Employer agrees that no work or services pres-
ently performed or hereafter assigned to the collective bargaining
unit will be subcontracted, transferred, leased, assigned, or in any
manner conveyed in whole or in part by the signator Employer out-
side of the jurisdictional area of the Local Union representing the
Employees presently performing the work, or to any other plant,
person or non-unit Employees (collectively "subcontract" or "sub-
contracting"), unless otherwise provided in this Agreement The
Employer may subcontract overflow loads when all of the Employ-
er's Employees are working , provided, however, (1) that each
person who performs subcontracted overflow loads shall receive the
full economic equivalent of the wages , hours and other conditions of
employment provided for in this Agreement , (2) that in no event
shall work or runs presently performed or established during the life
of this Agreement be subcontracted , (3) that no dock work covered
by this Agreement shall be subcontracted except for existing situa-
tions established by agreed-to-past practices , and (4) that subcon-
tracting shall not be used by the Employer as a subterfuge to violate
this Agreement , or to avoid hiring additional Employees to operate
existing equipment or obtaining additional equipment to be operated
by them or existing Employees This subcontracting provision is also
applicable to the establishment or continuation by the signator Em-
ployer of a transportation company or business which engages in the
same type of operation covered by this Agreement, which company
or business is owned or controlled by the signator Employer. How-
ever, the above provision shall not be interpreted so as to expand the
provisions of Article 2 (Recognition)
"Overflow loads" means only that work required to be performed
on any day of an emergency and nonrecurring nature which the Em-
ployer could not reasonably anticipate and which cannot be per-
formed by the Employees.
8(b)(4)(ii)(B) but only for the following reasons.'
Volkmar's threats to Emery officials that Emery
would be struck in Chicago and elsewhere if
Emery subcontracted the drayage work to a com-
pany that did not have a contract with the Re-
spondent or CTDU were an unambiguous attempt
to force Emery, a neutral employer,7 to cease
doing business with DPD or any other drayage
company that did not have a- contract with the Re-
spondent or CTDU. Such conduct is clearly viola-
tive of Section 8(b)(4)(ii)(B). Teamsters Local 282
(D. Fortunato, Inc.), 197 NLRB 673 (1972). See
also Newspaper & Mail Deliverers (B & W Distribu-
tors), 274 NLRB 929 (1985).8
Further, we find, contrary to the judge, that the
Respondent's filing of a grievance against Emery
violated Section 8(b)(4)(ii)(B) and that, the Supreme
Court's decision in Bill Johnson's is inapplicable to
this case.
The judge began his analysis with the premise
that the Court's holding in Bill Johnson's9 was ap-
plicable to the filing of a grievance. The judge then
reasoned that since the "Eight Man Board" deter-
mined the grievance to be meritorious, a finding- to
which he felt conclusively bound, then the Re-
spondent's motive was irrelevant and the grievance
filing was not unlawful.
The judge ignored, however, the Court's obser-
vation, in its Bill Johnson's decision that its holding
did not apply to a suit that "has an objective that is
illegal under federal law." 461 U.S. at 737 fn. 5.
Assuming, without deciding, that Bill Johnson's is
applicable to the filing of a grievance, we find that
the Respondent's grievance against Emery had an
unlawful objective and therefore that the Court's
decision is not applicable to this case. Laundry
Workers Local 3 (Virginia Cleaners), 275 NLRB
697, (1985).
The work that is the subject of the grievance
has, at least since 1959, never been done by
Emery's employees but rather by Stepina's employ-
ees, Thus, the Respondent, which has never had a
contract with Stepina, has never represented the
employees who did this work. Under these circum-
6 We adopt, for the reasons set forth by the judge, the judge's finding
that the Respondent 's strike against Emery from 15 to 19 October violat-
ed Sec. 8(b)(4)(u)(B)
' Although the Respondent represents certain of Emery's employees,
those employees , as noted infra, have never performed the drayage work
nor has the Respondent represented the employees of Stepma that have
performed the work Thus, the Respondent's primary dispute was with
DPD, whose employees were not represented by the Respondent or
CTDU.
8 In so finding, we reject and disavow the judge's reliance in his analy-
sis on the Board 's decision in Tn-Cast, Inc, 274 NLRB 377, (1985).
B The Court held that the Board may not enjoin a pending state-court
lawsuit, regardless of the plaintiff 's motive, unless the suit lacks a reason-
able basis in fact or law
TEAMSTERS LOCAL 705 (EMERY AIR FREIGHT)
stances, the Respondent 's grievance cannot be in-
tended to preserve existing bargaining unit jobs,
thereby establishing a legitimate work preservation
object . Rather , in the context of the Respondent's
threats and strike against Emery which , as found
above , had an unlawful secondary objective, the
Respondent 's filing of the grievance was but a fur-
ther attempt to force Emery to cease doing busi-
ness with DPD. Accordingly, we find the Re-
spondent's filing of the grievance to be violative of
Section 8(b)(4)(ii)(B). See Teamsters Local 85 (Pa-
cific Maritime Assn.), 224 NLRB 801, 807 ( 1976).10
ORDER
The National Labor Relations Board orders that
the Respondent, Truck Drivers, Oil Drivers, Fill-
ing Station and Platform Workers ' Union, Local
705,- affiliated with the International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Chicago , Illinois, its officers,
agents, and representatives , shall.
1. Cease and desist from
(a) Threatening to strike and striking Emery Air
Freight Corporation , where an object thereof is to
force or require Emery Air Freight Corporation to
cease doing business with DPD or any other em-
ployer.
(b) Filing or attempting to enforce a grievance
against Emery Air Freight Corporation , where an
object thereof is to force or require Emery Air
Freight Corporation to cease doing business with
DPD or any other employer.
(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Withdraw the grievance filed against Emery
Air Freight Corporation on 24 October 1984 and
the Section 301 counterclaim filed against Emery
Air Freight Corporation in the United States Dis-
trict Court for the Northern District of Illinois in
February 1985.
(b) Post at its Chicago , Illinois office copies of
the attached notice marked "Appendix ." "' Copies
of the notice , on forms provided by the Regional
Director for Region 13, after being signed by the
Respondent 's authorized representative shall be
posted by the Respondent immediately upon re-
10
Member Babson, in agreeing that the Respondent's filing of a griev-
ance violated Sec. 8(b)(4Xii)(B) of the Act, relies on the particular facts
of the instant case.
11 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 Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1305
ceipt and maintained for 60 consecutive days' in
conspicuous places, including all places where no-
tices to members are customarily posted . Reasona-
ble steps shall be taken by the Respondent to insure
that the notices are not altered, defaced or covered
by any other material.
(c) Furnish the Regional Director for Region 13
signed copies of such notice for posting by Emery
Air Freight Corporation , if willing , in places where
notices to employees are customarily posted.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent 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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL . NOT threaten to strike and strike
Emery Air Freight Corporation, where an object
thereof is to force or require Emery Air Freight
Corporation to cease doing business with DPD or
any other employer.
WE WILL NOT file or attempt to enforce a griev-
ance against Emery Air Freight Corporation,
where an object thereof is to force or require
Emery Air Freight Corporation to cease doing bu-
sinsess with DPD or any other employer.
WE WILL NOT in any like or related manner' re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL withdraw the grievance filed against
Emery Air Freight Corporation on 24 October
1984 and the Section 301 counterclaim filed against
Emery Air Freight Corporation in the United
States District Court for the Northern District of
Illinois in February 1985.
TRUCK DRIVERS , OIL DRIVERS,
FILLING STATION AND PLATFORM
WORKERS ' UNION LOCAL 705, AFFILI-
ATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND
HELPERS OF AMERICA
Alan G. Hellman, Esq., for the General Counsel.
Sheldon M. Charone, Esq., of Chicago, Illinois, for the
Respondent. .
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evan J. Cutting, Esq., of Washington , D.C., and Eliot
Azoff, Esq., of Cleveland, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY JR., Administrative Law Judge.
These cases came on for hearing before me at Chicago,
Illinois, on a consolidated unfair labor practice com-
plaint, ' issued by the Regional Director for Region 13
which alleges that Respondent Teamsters Local 705
(Union or Local 705) violated Section 8(b)(4)(ii)(B) of
the Act . 2 More particularly, the consolidated complaint
alleges that the Union, in furtherance of a labor dispute
with DPD , Inc., a subsidiary of Ryder Systems, Inc.,
threatened agents of Emery Air Freight Corporation
(Emery) with strikes and sympathy strikes if Emery con-
tinued to employ the services of DPD , that it struck
Emery at Emery 's place of business for the purpose of
forcing Emery to cancel a drayage contract with DPD,
and that it filed a grievance and obtained a grievance
award from an arbitration board to the effect that Emery
had violated its contract with the Union by contracting
out work to DPD. The Union denies these allegations
generally , disclaims responsibility for the strike by
Emery employees, and asserts that it was entitled to seek
and obtain a grievance award to the effect that Emery
was violating its contract with Local 705 and further,
that it was and is entitled to enforce that award in a Sec-
tion 301 suit in the United States district court . On these
contentions, the issues herein were joined.3
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
Emery operates a worldwide overnight air delivery
service and for this purpose maintains 120 different ter-
minals throughout the world. It employs about 5000 em-.
1 The principal docket entries in this case are as follows :Charge filed
on October 16, 1984, in Case 13-CC-1433, by Emery against Local 705;
Charge filed on November 14, 1984, in Case 13-CC -1438, by Emery
against Local 705; consolidated complaint issued by the Regional Direc-
tor for Region 13 , against Local 705 and Chicago Truck Drivers, Help-
ers, and Warehouse Workers' Union, Independent (CTDU), the Charged
Party in Case 13-CC-1432 , on November 27, 1984; Respondent Local
705's answer filed December 6 , 1984; order severing Case 13 -CC-1432
from Cases 13-CC-1433 and 13-CC-1438 issued by Acting Regional Di-
rector for Region 13, following settlement in Case 13-CC-1432; hearing
held in the above-entitled cases in Chicago , Illinois, on February 25 and
26, 1985 ; briefs filed with me by the General Counsel , the Charging
Party , and the Respondent on or before April 8, 1985.
2 Respondent Local 705 admits , and I find, that Emery Air Freight
Corporation maintains an office and place of business at Des Plaines, Illi-
nois, where it is engaged in the business of transportation of freight by
air. In the course and conduct of this business, Emery annually derives
revenue in excess of $50,000 from direct freight shipments from its Des
Plaines, Illinois facility and O 'Hare International Airport at Chicago, Illi-
nois, to points and places located outside the State of Illinois . According-
ly, Emery is an employer engaged in commerce within the meaning of
Sec. 2(2), (6), and (7) of the Act. Respondent Teamsters Local 705 is a
labor organization within the meaning of Sec . 2(5) of the Act.
9 A transcript error has been noted and corrected.
Since the close of the hearing , I have received motions from all sides
to correct the transcript , to add to the record , to strike references in
briefs, and the like. These motions are all denied.
ployees in the United States and another 1200 abroad. Its
corporate headquarters is located at Wilton , Connecticut.
One of the major cogs in this operation is at Chicago,
where Emery employs about 62 warehousemen and
truckdrivers . For many years these individuals have been
represented by Respondent Local 705. The terms and
conditions of their employment are set forth in what is
known as the Air Freight Forwarders and Related Com-
panies Joint Area Cartage Agreement , effective from
April 1, 1982, to March 31 , 1985. Emery is a signatory to
this agreement , as are many of Emery 's competitors in
the Chicago area.
Until October 1984, Emery operated its Chicago
freight forwarding business out of three rented locations
at O'Hare Airport . Beginning on October 15, 1984,
when , coincidentally, the strike at issue began. Emery
moved its entire Chicago operation to a new 17-acre
"state -of-the-art" facility of its own at 401 Tuohy Avenue
in nearby Des Plaines . The new warehouse and terminal
are completely fenced in and have four gates, two of
which are located on Tuohy Avenue and two of which
are on the opposite side of the premises on Old Higgins
Road.
Emery's Chicago operation essentially involves pick-
ing up packages from shippers in the Chicago area and
bringing them to the terminal for sorting and shipping by
air to a nationwide hub or collection point in Dayton,
Ohio . From the hub terminal , these packages are then
shipped to other Emery facilities throughout the United
States. The other facet of the operation involves the re-
ceipt of packages from elsewhere in the United States
and the world , most of which arrive by air from Dayton.
These packages are sorted at the Des Plaines terminal
and are then delivered to named addressees and consign-
ees in the metropolitan Chicago area. A few packages
are received from or delivered to commercial flights at
O'Hare Airport and receive individual handling apart
from the Dayton hub operation . Chicago is one of the
three or four ports of entry at which international ship-
ments are handled. These shipments are not routed via
Dayton , but are processed by using the Chicago facility
as a hub.
The pickup and delivery of packages in and about Chi-
cago has been ' handled over the years by drayage con-
tractors . Until October 12, 1984 , these contractors, Ste-
pina Motor Service , Inc., and Emergency Delivery, Inc.
(EDI), picked up incoming packages from Chicago area
shippers and brought them to the Emery terminal in
their own trucks driven by their own drivers. They
made deliveries throughout the Chicago area in the same
manner . Of the 4000-4500 packages shipped in and out
of the Chicago terminal during an average day, about 1
percent were and are handled by Emery's own drivers
driving Emery trucks . These pickups and deliveries in-
volve specially handled items from particular customers
and emergency or overflow work . For the most part,
Emery's 20 truckdrivers are used to ferry bulk loads to
and from air carriers at O'Hare. The Emery facility at
Des Plaines operates around the clock on a 6-day-a-week
basis . It is closed only on Sundays and major holidays.
TEAMSTERS LOCAL 705 (EMERY AIR FREIGHT) 1307
Stepina and EDI drivers have long been represented
by the independent truckdrivers ' union (CTDU) which
was the Respondent in Case 13-CC-1432. For the most
part , their wages and fringe benefits were comparable to
those paid to Emery drivers and warehousemen under
the Local 705 Joint Area Cartage Agreement.
During the summer of 1984, Emery undertook a cost
accounting of its Chicago operation and came to the
conclusion that it was experiencing an annual deficit well
in excess of $3 million . In order to eliminate this deficit
and to meet the rising challenge of its competitors, many
of whom were offering daily delivery before 10 :30 a.m.,
Emery set about looking for ways to cut costs . It settled
on the drayage operation as the most likely area for re-
ducing expenses.
Stepina accounted for the bulk of the drayage oper-
ation . It had 60-65 drivers and an equal number of com-
pany trucks . Like Emery and other Local 705 contrac-
tors, Stepina hired only full-time drivers . under the
CTDU contract . Emery approached Stepina about re-
ducing drayage costs and specifically about using part-
time drivers in this effort . It also wanted Stepina to guar-
antee delivery of incoming packages before 10:30 a.m.
each day . Stepina either could not or would not accom-
modate these demands and did not lower its costs, so
Emery decided to eliminate Stepina as a local carrier.
However , it made no move to eliminate EDI.
In seeking a replacement for Stepina, Emery consid-
ered several options, one of which was to make local de-
liveries with its own drivers and using its own or rented
trucks . This option proved undesirable for several rea-
sons , one of which was that Emery would have to beef
up its staff and equipment and would also have to under-
take a large-scale training program for new hires. More-
over, Emery would still be saddled with the provision in
its contract with Local 705 requiring the use of full-time
drivers, a requirement which it actively sought to elimi-
nate during the contract term but which Local 705 was
unwilling to change . Late in September or early in Octo-
ber 1984, Emery contracted with DPD, a subsidiary of
Ryder Trucks, to take over the work done by Stepina.4
As noted above , it also decided to continue with EDI as
its other drayage contractor.
During the late summer and early fall of 1984, Emery
officials had several contacts and conversations with
Local 705 officials concerning proposed changes in the
O'Hare operation, soon to become the Des Plaines oper-
ation . On September 4, Richard Volkmar , the Local 705
business agent who had serviced the Emery contract for
a number of years,b had a dinner meeting at the O'Hare
Hilton with Emery Vice President Daniel W. Shea. Shea
told Volkmar that Emery was losing money in Chicago
because its drayage contractor , Stepina, was inefficient
and told him that Emery was thinking about doing the
work itself if it could use part -time drivers in sufficient
4 DPD does not perform services for any other customer, giving rise
to an inference that DPD was established by Ryder exclusively to service
the Emery facility at Des Plaines.
As a business agent for the Respondent, Volkmar's words and deeds
are legally attributable to the Respondent, even though they have not
been specifically authorized or ratified by Local 705. Longshoremen Local
6 (Sunset Line), 79 NLRB 1487 (1948).
numbers. He also told Volkmar that Emery was also
thinking about using another cartage company. Volkmar
told Shea on this occasion that if the cartage company
did not have a contract with either Local 705 or the
CTDU, the Company could expect a great deal of unrest
and difficulty. It would be struck both in Chicago and
elsewhere, including New York City and anywhere else
the Union could find support . Shea said that Emery's
contract with Local 705 made such a strike illegal. Volk-
mar asked him if Emery could take the heat while it was
in the process of seeking relief from a strike in court or
from an administrative agency. Shea informed Volkmar
on that occasion that no firm decision had been made at
that time.
On September 11, about 1 p .m., Jack Harper, Emery's
Chicago area service manager , received a visit at
Emery's former O'Hare office from Volkmar. Volkmar
began the conversation casually by telling Harper that he
thought there would be some problems at the new build-
ing because of the way that packages were coming off
the primary slide . He went on to say that "we are going
to have some big problems ." He went on to explain to
Harper that he had met with some corporate officials
from the Emery headquarters in Connecticut the previ-
ous week who had told him that Emery was contracting
out the drayage work to Ryder, a firm that had a con-
tract with a maritime union . Volkmar informed Harper
that, if this happened, he would shut down the Chicago
operation and, if Emery persisted for more than a couple
of days, Local 705 would also shut down the Emery op-
erations in New York City and Los Angeles . He noted
that Emery had been considering the possibility of using
Emery employees for drayage work and he asked
Harper why things had fallen apart when they had ap-
peared to be so promising . They both recognized, during
the course of the conversation, that the difficulty in
using Emery drivers turned on the question of the avail-
ability of part-time drivers. Emery wanted part-time
drivers so it could be more competitive and the Union
was opposed to amending the existing contract to permit
this practice . After a lengthy discussion on this subject,
Volkmar agreed to speak with Louis Peick, the secre-
tary-treasurer of Local 705 and its leading spokesman,
about the possibility of using part-time drivers if Emery
would employ 705 members for drayage work as a part
of its own expanded operation . A short while later,
Volkmar phoned Harper and told him that he had
spoken with Peick concerning the use of part-time driv-
ers at Emery and had relayed the opinion . that he felt
that this proposal might have some possibilities . Volkmar
informed Harper that he was going to phone two Emery
officials in Connecticut, Vice President Joseph Tighe and
Shea, and explore the matter more with them.
That afternoon Volkmar phoned Emery headquarters
long distance and, after an exchange of calls, spoke with
Shea . Volkmar told Shea that Peick had received a
phone call from Florida during the course of which he
had been informed that Emery was about to assign the
Chicago drayage work to Ryder. Volkman told Shea
that, if Ryder did not have a contract with either Local
705 or the CTDU, Emery. would be struck. When Shea
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied that such a strike would be illegal, Volkmar
simply observed that he was passing along the message
that Peick had told him to relay.
On the following day, Volkmar and Harper had an-
other conversation. Volkmar informed Harper that, on
the preceding afternoon, Peick had called him into his
office and had informed Volkmar that he had received a
phone call from Florida in which he learned that Emery
was going to contract its drayage work to Ryder and
that Ryder employees were going to be represented by a
maritime union. He told Harper that Peick went "ba-
nanas" and said that Local 705 would strike Emery and
would shut it down. In a second phone conversation that
morning , Volkmar told Harper to forget about any pre-
vious discussions concerning the use of part-time em-
ployees because that possibility was now "out." He re-
layed to Harper the fact that Peick had noticed an ad in
a Chicago newspaper placed by Ryder Distribution
Services seeking pickup and delivery drivers in the Chi-
cago area. Peick was also reported as saying that "we
will shut them down," that the CTDU had been in con-
tact with him, and that Local 705 would work together
with the CTDU in this matter.
On or about September 14, Shea and other Emery offi-
cials had a meeting at the Teamsters office in Chicago
with Peick and various officials of Local 705. The pur-
pose of the meeting was to explore alternatives to han-
dling the drayage at the new Emery facility at Des
Plaines . Shea informed the Union that it had received
bids which were lower than Stepina's bid. One possibility
which was discussed was transferring all of the drayage
work to EDI. Peick told Shea and other Emery officials
that he did not care whom they used as a drayage con-
tractor so long as the contractor paid wages and fringe
benefits which were the same as those that were current-
ly being paid.
The parties also discussed the possibility of using
Emery's own employees for drayage work. It needed
union permission to use part-time drivers in order to do
so. The Union was willing to allow the use of a few
part-timers but Emery wanted more. During the course
of the meeting, Local 705 Attorney Sherman Carmell ex-
pressed the opinion that Local 705 might have to engage
in area standards picketing if Emery employed a contrac-
tor who did not have a contract with Local 705 or the
CTDU. The meeting ended without any agreement on
this point.
On the following Tuesday, Shea again had occasion to
be in Chicago and to speak with Volkmar. On this occa-
sion, he was accompanied by Walter Hubley, Emery's
director of labor relations. The meeting took place in a
coffeeshop near O'Hare Airport. On this occasion, the
Emery spokesmen were again trying to explain how the
use of part-time drivers would increase the efficiency of
the operation. Volkinar's reply was that he did not think
that Peick would go for their proposal. Shea asked him
to present the proposal to Peick, and Volkmar agreed to
do so. A couple of days later, Volkmar called Shea long
distance and told him that Peick would not go for more
part-time drivers because he was afraid that the Union
would have to grant the same concession to other freight
forwarders if it agreed to Emery's proposal.
Monday, October 15, was the first day that Emery
used its new Des Plaines facility. The previous Saturday
was the first day on which DPD was used as an Emery
drayage contractor. Harper had heard rumors the previ-
ous week that there might be trouble, so he arranged to
be present at the Des Plaines facility around the clock.
Before opening the Des Plaines facility, Emery posted
signs which reserved the southwest gate on Old Higgins
Road exclusively for DPD employees and posted signs
at the other gates warning DPD employees to keep out.
About 6 a.m. on October 15 pickets appeared at all gates
wearing apron signs which said "Unfair-CTDU." Harper
recognized the pickets to be former Stepina Motor Serv-
ice employees who apparently had been laid off as a
result of the cancellation of the Stepina contract. They
picketed at all four gates and continued to do so on a 24-
hour-a-day basis until the following Friday afternoon.
About 8:30 a.m. that morning a gathering of 50 to 60
Emery employees took place outside the terminal near
one of the picketed gates. Emery employees report for
work at various hours throughout the day. The gather-
ing in question included both those employees who had
already reported for work, those scheduled to begin
working, and others who were not due to report until
later in the day. Also present were Volkmar, Local 705
Shop Steward Jack Slattery, and Local 705 President
John Navigato, who had been summoned to the site by a
Local 705 dispatcher as he was driving in his radio-
equipped vehicle. Several Emery employees asked Volk-
mar what they should do and Volkmar told them to do
whatever they wanted to do. The assembled employees
then took an informal vote among themselves and agreed
not to cross the CTDU picket line. Volkmar then told
them to disperse and to refrain from going near any
trucks. He also instructed them to show up at the gate
each day at their various scheduled reporting times to
see what was happening. The Emery employees did dis-
perse, and there is no evidence that any of them took
part in the picketing which continued throughout the
week.
During the week of October 15-21, Emery continued
to operate the Des Plaines facility with the use of super-
visors and contractor employees who crossed the picket
line. When the CTDU picket line was removed, Emery
employees returned to work.
The Local Cartage Agreement between Emery and
Local 705 contains a provision which states, inter alia:
For the purpose of preserving work and job oppor-
tunities for the employees of the signator employer
covered by this agreement, the signator employer
agrees that no work or services presently performed
or hereafter assigned to the collective bargaining
unit will be subcontracted, transferred, leased, as-
signed, or in any manner conveyed in whole or in
part by the signator employer outside the jurisdic-
tional area of the local union representing the em-
ployees presently performing the work, or to any
other plant, person or non-unit employees (collec-
tively "subcontract" or "subcontracting "), unless
otherwise provided in this agreement. [Art. 13, sec.
2.]
TEAMSTERS LOCAL 705 (EMERY AIR FREIGHT) 1309
Article 19 , section 2 , of the same agreement provides for
the processing of grievances relating to the interpretation
or application of the agreement other than the discharge
or discipline of an employee . If the immediate parties to
the dispute cannot resolve it between themselves, the
grievance may then be referred to a permanent joint
grievance committee , the constituency of which is
spelled out in the contract . If the joint committee votes
to resolve the grievance by a majority vote , the award is
deemed to be final and binding . If it deadlocks, "then
either party shall be entitled to all lawful economic re-
course to support its position ." There is no provision in
the agreement for arbitration . The contract also provides
for strike action to enforce an award of the joint commit-
tee. It also provides that the "recourse reserved to the
Union in this Agreement shall be cumulative with any
other economic or legal remedy available to it."
On October 24 the Union filed a grievance charging
that Emery had violated the above-quoted provision in
the Joint Cartage Agreement "by contracting out driv-
ers' work to a company which is not paying those em-
ployees area benefits and wages which are received by
drivers under the agreement." Peick sent Emery a letter
requesting a first-step meeting on Wednesday , November
7 at 9 a .m. Apparently the meeting did not take place on
this date . The record contains a statement indicating that
a six-man panel met on November 14 and deadlocked
over the grievance . The case was then remanded to an
eight-man board , which met the following Friday, No-
vember 16.
On November 16, a hearing on this grievance was held
by an eight-man board . All parties were present , either
personally or by counsel . Evidence was taken and argu-
ment was presented . The record in this case is, at best,
skimpy about what was said to the eight-man panel, and
posttrial efforts to supplement this record about what
took place at the November 16 hearing were vigorously
opposed by the General Counsel and the Charging
Party . It is clear in this record that the grievance filed by
Local 705 was sustained by the grievance board and that
Emery was found to have violated the Joint Area Cart-
age Agreement by subcontracting work in -violation of
article 13 , section 2 of the agreement . Emery has ap-
pealed this decision by filing a civil action in the United
States District Court for the Northern District of Illinois,
under the provisions of Section 301 of the National
Labor Relations Act, in which it is asking the district
court to set aside the award of the grievance panel.
Local 705 has filed a counterclaim in the same civil
action and is asking the district court to confirm the
award of the grievance panel . No strike or other eco-
nomic action has taken place for the purpose of enforc-
ing the award . As of the date of the hearing in this case,
the matter was still pending before the district court.
II. ANALYSIS AND CONCLUSIONS
A. Threats in Violation of Section 8(b)(4)
The consolidated complaint alleges that the Respond-
ent is guilty of four violations of Section 8(b)(4)(ii)(B) by
virtue of threats made by Volkmar to Emery manage-
ment officials in September , 1984, at a point in time
Emery was considering a course of action designed to
replace Stepina as one of its drayage contractors. To
constitute a violation of that section of the Act, two sep-
arate findings must take place . The statement in question
must be more menacing than one made to a rank -and-file
employee . It must actually threaten , restrain , or coerce
the secondary employer to whom it is directed. More-
over, the object of the offending statement must be one
proscribed by the Act. Teamsters Local 812 v. NLRB
(Monarch Long Beach Corp.), 657 F.2d 1252 (D.C. Cir.
1980).
In his first meeting with Shea , on September 4, Volk-
mar told Shea that, if Emery subcontracted work to a
cartage company that did not have a contract with Local
705 or the CTDU, the Company could expect a great
deal of unrest and difficulty. This aspect of his statement
does not constitute a threat . Electro-Coal Transfer Corp.
v. Longshoremen Local 1418, 591 F.2d 284 (5th Cir.
1979). However , Volkmar went on to say that Emery
would be struck not only in Chicago but in New York
and anywhere else the Union could muster support.
When Shea said that such a strike would be illegal,
Volkmar's reply was a rhetorical question ' whether the
Company could stand up under a strike while it was
seeking redress from the Board or in a court.
Normally a remark like that would routinely be re-
garded as a threat . However , certain language in a recent
Board decision throws considerable doubt on such a
finding . In Tri-Cast., 274 NLRB 377 (1985), the Board
was confronted by objections to the conduct of an elec-
tion in which the employer was found to have said:
we have to bid higher or customers feel threatened
because of delivery cancellations, we lose busi-
ness-and jobs.
The Board held that this remark did not constitute a
threat but was permissible campaign comment because
"the Employer's . . . comment is couched in terms of
what might happen 'if certain events occur . We construe
this comment as nothing more than the Employer's per-
missible mention of possible effects of unionization." 274
NLRB 377 , 378 (1985).
Applying the Tri-Cast rule to Volkmar's remarks, it
should be noted that what Volkmar was saying was that
Emery would be struck "if' it engaged in certain con-
duct. He did not flatly say that Emery was going to be
struck. Merely giving notice that a strike might take
place has been held by the Board not to be a threat
within the meaning of Section 8(b)(4)(ii)(B). Teamsters
Local No. 83 (Marshall & Haas), 133 NLRB 1144, 1146
(1961). What appears to distinguish Volkmar's remarks
from the Tri-Cast rule is that Volkmar went beyond
saying what might happen "if" Emery subcontracted
work to a nonunion drayage contractor by indicating
that the Union would resort to illegal pressure . This is
the clear implication in Volkmar's question to Shea about
whether the Company could stand up to a strike (which
Shea termed illegal) while the Company was trying to
get legal relief from the Union's action . Because of this
distinguishing feature , I conclude that Volkmar 's state-
ment amounts to a threat to engage in illegal economic
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressure and, as such, is a violation of Section
8(b)(4)(ii)(B) of the Act.
Likewise, Volkmar's statement to Harper on Septem-
ber 11 that Emery would have "some big problems" if it
contracted out work to Ryder does not, under the au-
thority cited above , constitute a threat . However, Volk-
mar's further statement incorporated by reference to the
conversation which he previously had with Shea. This
statement included an express intention to engage in a
strike, whether it be lawful or unlawful . After mention-
ing the Shea-Volkmar exchange to Harper , Volkmar
went on to say that contracting work to Ryder would
prompt the Respondent to shut down the Chicago oper-
ation and , if Emery did not immediately capitulate,
would prompt an extension of the strike to other corpo-
rate locations . For reasons stated above , this type of pre-
diction of consequences constitutes a threat within the
meaning of Section 8 (b)(4)(ii)(B). I so find and conclude.
Volkmar's long-distance conversation with Shea, im-
mediately following his conversation with Harper, pre-
sents the same type of prediction of consequences. Volk-
mar told Shea that Union Secretary -Treasurer Peick had
received information from Florida that Emery was going
to contract out Chicago drayage work to Ryder. Volk-
mar volunteered the statement that , if Ryder did not
have a contract either with Local 705 or the CTDU,
Emery would be struck . When Shea said that such a
strike would be illegal , Volkmar persisted by saying that
he was merely passing along Peick 's remark . However,
by passing along Peick 's remarks in the manner he did,
Volkmar again affirmed the disposition of the Respond-
ent to engage in illegal conduct , thereby bringing it out
from under the rule in the Tri-Cast case . Accordingly,
these remarks by Volkmar should be considered to be a
threat in violation of Section 8(b)(4)(ii)(B) of the Act.
Volkmar's statement on the following day to Harper,
repeating as he did Peick 's remarks concerning what
Peick had learned concerning Ryder and Ryder's em-
ployees, fall within the same general penumbra . Accord-
ingly, they should be regarded as a threat within the
meaning of Section 8 (b)(4)(ii)(B) of the Act.
B. The Strike of October 15-20
After the CTDU established a picket line in front of
the Emery premises on the morning of October 15, the
entire constituent body of Local 705 members on the
Emery payroll held an impromptu meeting outside the
gate . In the presence of the Respondent's president, busi-
ness agent, and shop steward , they voted not to go to
work. Whether couched in terms of respecting the
CTDU picket line or simply going on strike , the effect
was the same . Emery employees as a group had decided
not to report for work when they were obligated to do
so. Both because this was a constituent act and because it
was taken in the presence of high union officials , the re-
fusal of Emery employees to report for work during this
period of time constitutes a strike for which the Re-
spondent is legally responsible . Volkmar 's statement to
the assembled employees that they could do whatever
they pleased does not absolve the Union from responsi-
bility for what immediately transpired.
In order to constitute a violation of Section 8(b)(4),
the strike must have taken place for an object proscribed
by the Act . I disagree with the contention of the General
Counsel that the purpose of the strike was recognitional.
Despite certain remarks by Volkmar that DPD or Ryder
should have a contract with CTDU or Local 705, Peick,
the principal union spokesman , in effect contradicted
those remarks during the lengthy conference which he
held with company officials on September 14 during the
joint effort to work out a solution to the question of
whom should do drayage work after Stepina was termi-
nated as a contractor . I take Peick at his word when he
stated that he did not care whom Emery used so long as
the drayage contractor observed area standards. One of
the possibilities actively under consideration at that time
was the use of Emery employees working under the cur-
rent Local 705-Emery agreement.
However, during the month which elapsed between
the time Peick outlined the Union 's official position to
Emery and the date the strike commenced , Emery had
hired a contractor which manifestly did not observe area
standards, including the most contentious standard of
all-the use of nothing but full-time drivers. When the
strike began, the question was no longer an abstract
matter of a contractor failing to observe area standards.
The strike was directed specifically against DPD because
DPD was not observing area standards. As such, the
strike was a coercive effort on the part of the Respond-
ent to force Emery to cease doing business with DPD.
Because such an object is proscribed by the Act, the
strike constitutes a violation of Section 8(b)(4)(ii)(B). I so
find and conclude.
C. The Filing ofa Grievance and the Attempt to
Enforce a Grievance Award in District Court
On October 24, Local 705 filed a grievance against
Emery charging that Emery was in violation of a section
of its contract with Local 705 in which it agreed that
"no work or services presently performed or hereafter
assigned to the collective-bargaining unit will be subcon-
tracted, transferred , leased, assigned, or in any manner
conveyed in whole or in part by the signator employer
outside the jurisdictional area of the local union...."
with certain noted exceptions . A six-man panel met on
November 14 but was unable to resolve the grievance
and deadlocked . It referred the case to an eight-man
board, composed equally of union and trucking company
representatives, which met on November 16 to hear the
grievance. As outlined above, the eight-man board sus-
tained the grievance, although apparently it did not
order any affirmative relief. Emery then filed suit in a
United States district court to set aside the award and
Local 705 counterclaimed to enforce it. The General
Counsel and the Charging Party contend that the filing
of the grievance and the award by the arbitration panel
violate Section 8(b)(4)(ii)(B). Both advance various and
sometimes disparate theories in support of this basic con-
tention.
The General Counsel's position is that the filing of the
grievance was frivolous because the contentions made in
the grievance proceeding were frivolous. Accordingly,
TEAMSTERS LOCAL 705 (EMERY AIR FREIGHT)
the only purpose which could have prompted Local 705
in filing such a frivolous grievance was harassment de-
signed to bring more pressure to bear upon Emery to
force it to cease doing business with DPD. The Charg-
ing Party agrees with this theory but goes a step or two
further, claiming that it does not matter whether or not
the grievance was meritorious because even the filing of
a meritorious grievance in the context of a pattern of
secondary behavior is an illegal act . It extends this argu-
ment to cover not only to the initial action of the Union
in grieving but to the Union's further action in going to
Federal court to enforce the grievance award.
The General Counsel does not mention in his brief the
recent Supreme Court decision in Bill Johnson's Restau-
rants v NLRB, 461 U.S. 731 (1983), but the argument he
proffered parallels the rationale enunciated by the Su-
preme Court in resolving a closely related question pre-
sented in that case . The Charging Party's brief says a
great deal about Bill Johnson 's but distinguishes this case
from the question at issue before the Supreme Court.
Necessarily a resolution of the question presented by the
consolidated complaint in these cases must begin with a
consideration of Bill Johnson's, its background , and the
necessary implications of what the Supreme Court said
and did in that case . Both this case and Bill Johnson's in-
volve an intrusion by the Board into the decision-making
processes of another tribunal. The ultimate question here
is whether the posture of an arbitration or grievance
panel and the United States district court in a Section
301 suit are equivalent in law or legal policy to the state
court proceedings which were vindicated by the Su-
preme Court in Bill Johnson's as a matter of constitution-
al law, and , if so, whether the Union's grievance can be
deemed frivolous since it was upheld by the grievance
panel.
In Bill Johnson 's, an employer faced with an organiz-
ing campaign fired an employer suspected of being an in-
house organizer . He then committed other acts which
constituted an infringement of Section 7 rights and a vio-
lation of Section 8(a)(1). Union sympathizers picketed his
establishment and circulated leaflets, one of which ac-
cused him of making unwarranted sexual advances
toward female employees . The employer then filed a suit
alleging libel and the illegal blocking of public ingress
and egress by picketing employees . The suit was docket-
ed in a state court in Arizona. The complaint issued
against him in the Board proceeding charged, among
other things , that the mere filing of the state court suit
was a violation of Section 8(a)(1) because the employer's
action was retaliatory in nature and had a distinct tend-
ency to coerce employees in the exercise of Section 7
rights, ,in that they had to spend time and money defend-
ing against the libel action . The Board agreed with the
General Counsel, found that this action violated Section
8(a)(1) and (4) of the Act, and ordered the employer to
withdraw his lawsuit and reimburse his employees for
legal expenses incurred in defending the suit.
In reviewing this decision, the Supreme Court noted
that, over the years, the Board had taken various differ-
ent positions on the question of whether the filing of a
state court civil action constituted'a violation of Section
8(a)(1) of the Act when done in the context of an antiun-
1311
ion campaign . Sometimes the Board found such actions
to be violations of the Act and sometimes it did not. In
articulating the rationale which governed the outcome of
the Supreme Court case, Mr. Justice White stated at 742:
Of course, in light of the Board 's special compe-
tence in applying the general provisions of the Act
to the complexities of industrial life, its interpreta-
tions of the Act are entitled to deference, even
where, as here, its position has not been entirely
consistent [citations omitted] . And here, were only
the literal language of §§ 8(a)( 1) and 8(a)(4) to be
considered , we would be inclined to uphold the
Board , because its present construction of the stat-
ute is not irrational . Considering the First Amend-
ment right of access to the courts and the state in-
terests identified in cases such as Linn and Farmer,
however, we conclude that the Board 's interpreta-
tion of the Act is untenable . The filing and prosecu-
tion of a well-founded lawsuit may not be enjoined
as an unfair labor practice , even if it would not
have been commenced but for the plaintiffs desire
to retaliate against the defendant for exercising
rights protected by the Act.
The Court went on to say at 746-749:
In the present case , the only disputed issues in
the state lawsuit appear to be factual in nature.
There will be cases, however, in which the state
plaintiffs case turns on issues of state law or upon a
mixed question of fact and law . Just as the Board
must refrain from deciding genuinely disputed mate-
rial factual issues with respect to a state suit, it like-
wise must not deprive a litigant of his right to have
a genuine state-law legal questions decided by the
state judiciary. While the Board need not stay its
hand if the plaintiff s position is plainly foreclosed
as a matter of law or is otherwise frivolous, the
Board should allow such issues to be decided by the
state tribunals if there is any realistic chance that
the plaintiffs legal theory might be adopted.
In instances where the Board must allow the law-
suit to proceed, if the employer's case in the state
court ultimately proves meritorious and he has
judgment against the employees , the employer
should also prevail before the Board , for the filing
of a meritorious lawsuit , even for a retaliatory
motive, is not an unfair labor practice. If judgment
goes against the employer in the state court, howev-
er, or if his suit is withdrawn or is otherwise shown
to be without merit, the employer has had its day in
court, the interest of the State in providing a forum
for its citizens has been vindicated , and the Board
may then proceed to adjudicate the § 8(a)(1) and §
8(a)(4) unfair labor practice- case.
To summarize, we hold that the Board may not
halt the prosecution of a state-court lawsuit , regard-
less of the plaintiffs motive, unless the suit lacks a
reasonable basis in fact or law. Retaliatory motive
and lack of reasonable basis are both essential pre-
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requisites to the issuance of a cease -and-desist order
against a state suit . The Board's reasonable basis in-
quiry must be structured in a manner that will pre-
serve the state plaintiff's right to have a state-court
jury or judge resolve genuine material factual or
state-law legal disputes pertaining to the lawsuit.
Therefore, ifkthe Board is called upon to determine
whether a suit is unlawful prior to the time that the
state court renders final judgment, and if the state
plaintiff can show that such genuine material factual
or legal issues exist , the Board must await the re-
sults of the state-court adjudication with respect to
the merits of the state suit . If the state proceedings
result in a judgment adverse to the plaintiff, the
Board may then consider the matter further and, if
it' is found that the lawsuit was filed with retaliatory
intent, the Board may find a violation and order ap-
propriate relief. In short, then, although it is an
unfair labor practice to prosecute an unmeritorious
lawsuit for a retaliatory purpose , the offense is not
enjoinable unless the suit lacks a reasonable basis.
This case cleared the air concerning the relationship of
the Board to the judiciaries of the several states concern-
ing a number of previously disputed matters. First of all,
with respect to meritorious civil actions , the Board does
not' merely "defer" to the state judiciary, to employ a
well-worn expression. It is flatly precluded by the Con-
stitution of the United States from inquiring into such a
suit and from interfering with a state proceeding in any
way. A retaliatory act by an employer which coerces,
restrains , or interferes with employees in the exercise of
their right to engage in union or protected activity nor-
mally constitutes a violation of Federal law. However,
this analysis simply may not be employed with respect to
a meritorious civil action in a state court, even though it
may be a valid and , indeed, commonplace when evaluat-
ing, almost any other kind of employer activity designed
to thwart unionization . A meritorious state court suit is
simply a form of retaliatory employer conduct which is
privileged, and the merits of the suit must be vindicated
independently of the context in which they are asserted.
A second result of Bill Johnson's is equally clear. The
fundamental responsibility for determining the merits of a
state civil action belongs to the state judiciary, and once
the state forum has declared a civil action to be meritori-
ous, the Board is conclusively bound by the determina-
tion . The Board may not sit as an ad hoc court of ap-
peals looking over the shoulders of a state judge or jury
which has heard and' resolved the substance of a civil
case. If a state judge or jury has erroneously found merit
in the suit, the defendant's remedy must lie within the
state judicial system, not with the Board. Only before the
state court'has adjudicated the merits or after it has de-
clared the suit to be unmeritorious does the Board have
any, standing to inquire, and its inquiry in the first in-
stance is limited simply to a determination of whether
the cause of action being prosecuted is wholly frivolous.
The matter at issue here is whether the Bill Johnson's
rationale should or must be applied to a grievance that
has been submitted to a grievance panel, adjudicated to
be meritorious by the grievance panel, and now reposes
before a Federal district judge in what is essentially an
appeal of the grievance award . 6 As in the matter of ac-
commodating state court civil actions before Bill John-
son's, the Board has taken different positions when it has
been called upon to determine whether resort to a con-
tractual grievance procedure and/or a Section 301 suit
constitutes an illegal coercion directed against a second-
ary employer with whom ' the union has a collective bar-
gaining relationship. In some cases, the Board has held
that resorting to the grievance procedure is not illegal
secondary conduct.? In other cases , the Board has found
that such actions do violate Section 8 (b)(4)(ii)(B) of the
Act.8 These cases are all pre-Bill Johnson 's decisions.
The first question to be addressed here is whether,an
arbitrator or a contractual grievance panel has the same
standing vis-a-vis the Board that the Supreme Court
granted to state courts in Bill Johnson 's. Private means of
adjustment are not public agencies so they can hardly be
accorded First Amendment standing. The same cannot
be said, however, for federal district courts, to whom the
First Amendment right of access , as outlined in Bill
Johnson 's, is even more directly applicable than in the
case of state courts . A problem arises in separating -these
two forums since, in the matter of grievance resolution
and enforcement, the two forums are inextricably inter-
twined . One normally cannot- be heard on the merits in a
Section 301 suit without first going through the griev-
ance machinery , unless the suit in question is filed origi-
nally to compel arbitration on the part of a recalcitrant
party to a collective -bargaining agreement . In the latter
case, the issue is normally limited to arbitrability and
does not examine the merits of the claim . An arbitration
or grievance panel award is the threshold of a Section
301 suit.
The Supreme Court long ago quoted with approval
Board language to the effect that the Board may adjudi-
cate an unfair labor practice charge even though the sub-
ject matter of the charge might also be the subject of an
arbitration proceeding and award . Carey v. Westinghouse
Electric Corp., 375 U.S. 261 (1964). But saying that the
same substantive matter may be adjudicated in two dif-
ferent forums is a far cry from saying that one adjudica-
tor may issue an order preventing the other from per-
6 The joint board which adjudicated the Local 705-Emery grievance is
obviously not an arbitrator, nor does the Joint Cartage Agreement au-
thorize conventional arbitration Notwithstanding this fact , it is the forum
for the resolution of grievances which the parties to this contract have
agreed upon, and it administers the final adjudication on the merits au-
thorized by the contract . In the past, the Board has deferred to the deter-
mination of such joint employer-union panels in situations ansmg under
the Spielberg rule Denver-Chicago Trucking Co., 132 NLRB 1416 (1961);
McLean Trucking Co., 202 NLRB 710 (1973). See also City Service Insula-
tion Co., 266 NLRB 654 (1983)
' Sheet Metal Workers Local 49 (Los Alamos Constructors), 206 NLRB
473 (1973); Retail Clerks Assn. (Hughes Markets), 218 NLRB 680 (1975),
Machinists District Na 71 (Harris Truck), 224 NLRB 100 (1976); Los An-
geles Building Council (Noble Electric Co.), 217 NLRB 946 (1975); Labor-
ers Local 89 (Taylor Construction Co.), 230'NLRB 638 (1977), Southern
California Pipe Trades District Council No 16 (Kimstock Division), 207
NLRB 711 (1973)
s Sheet Metal Workers Local 418 (Young Plumbing), 209 NLRB 1177
(1974); Boilermakers Local 92 ` (Bigge Drayage), 197 NLRB 281 (1972);
Teamsters Local 85 (California Trucking), 224 NLRB 801 (1976).
TEAMSTERS LOCAL 705 (EMERY AIR FREIGHT)
forming its function . The latter question is what is at
issue here.
Legal literature fairly abounds with elaborate Board
and court pronouncements concerning the paramount
importance of arbitration in the Federal statutory scheme
of labor relations . In Carey, supra, the Supreme Court
spoke of allowing "the therapy of arbitration (to be)
brought to bear in a complicated and troubled area." 375
U.S. 261 at 272 supra . In International Harvester Co., 138
NLRB 923, at 926 (1962), the Board expounded on. this
theme as follows:
The Act, as has repeatedly been stated , is primar-
ily designed to promote industrial peace and stabili-
ty by encouraging the practice and procedure of
collective bargaining . Experience has demonstrated
that collective-bargaining agreements that provide
for final and binding arbitration of grievance and
disputes arising thereunder "as a substitute for in-
dustrial strife," contribute significantly to the attain-
ment of this statutory objective. Approval of the ar-
bitral technique , which has become an effective and
expeditious means of resolving labor disputes, finds
expression in Section 203(d) of the Labor-Manage-
ment Relations Act, 1947. That provision declares:
"Final adjustment by a method agreed upon by the
parties is hereby declared to be the desirable
method for settlement of grievance disputes arising
over the application or interpretation of an existing
collective bargaining agreement ." The Board has
often looked to this declaration as a guideline in ad-
ministering its Act.
Many more statements in a similar vein could be cited
but it would be redundant to do so.
If the private resolution of contract disputes is high
Federal statutory policy and access to the Federal court
system is a First Amendment requirement, it follows that
the rules and rationale of Bill Johnson's should govern
the determination of the question presented in this case.
Indeed , there are no significant distinctions between this
case and Bill Johnson's which would warrant a contrary
conclusion . If this be so, and I conclude that it is, then
certain further conclusions follow from these premises
which should be applied to the facts of this case. One
such conclusion is that the fundamental responsibility for
determining the merits of the grievance belongs to the
arbitrator or grievance panel , not to the Board. The
Board 's inquiry under an 8(b)(4)(ii)(B) charge should, as
in Bill Johnson's, be limited to determining whether the
grievance is frivolous if the grievance has not yet been
adjudicated . To this extent, the General Counsel's theory
(although not the Charging Party's theory) parallels-the
procedure outlined by the Supreme Court relative to
civil actions in state courts.
However, if Bill Johnson 's is to be fully applied, the
facts in this case call for the application of other princi-
ples which go beyond anything squarely addressed by
the General Counsel. Had the joint grievance committee
not yet acted, the next step in the Board 's inquiry would
be, as the General Counsel suggests , an examination into
whether Local 705's grievance was frivolous or whether
1313
it had a colorable basis . However, this case has pro-
gressed far beyond the stage of merely filing a grievance.
The grievance panel has heard and decided this griev-
ance and has found that it was not frivolous . In fact, it
found the grievance to be meritorious and that Emery
had violated its contract with Local 705 by changing
drayage contractors and hiring one which did not ob-
serve area standards.
-Had the issue before the grievance panel been whether
Emery violated its contract by the hiring of a substand-
ard contractor to assume the work of ferrying packages
to and from O'Hare-the principal work of Emery driv-
ers-it would be easy to see how the panel might come
to such a conclusion . The issue presented was quite dif-
ferent, namely whether shifting work from one local
drayage contractor to another involves "work or serv-
ices presently performed or hereafter assigned to the
(Emery) collective bargaining unit ." How the grievance
panel found merit in that claim is somewhat more diffi-
cult to see. However , the panel did make such a fording,
and upon a record which was not introduced into evi-
dence in this case . No fully articulated findings of the
grievance panel are before the Board to explain the ra-
tionale the grievance panel followed in reaching its deci-
sion . Presumably that evidentiary record and those find-
ings are, or will be , before the district judge in the Sec-
tion 301 suit so that , in adjudicating Emery 's petition to
set aside the award , he can examine these questions on
their merits and be able to determine whether, as the
General Counsel contends , the contract has been badly
misinterpreted and misapplied . But if Bill Johnson's is fol-
lowed , it is for the appellate tribunal in the grievance
procedure , not for the Board , to make this determination,
since the Board is conclusively bound by the determina-
tion of merit made by the grievance panel. The same
would apply to certain procedural points which were
raised in this proceeding , namely , that the grievance was
untimely filed under the contract and that the eight-man
board was improperly impaneled.
If the Board is bound by the.grievance panel 's deter-
mination of merit-and I think that it is under an applica-
tion of Bill Johnson 's-then the fact that Local 705 filed
the grievance with a proscribed motive is as irrelevant as
was the Board determination that Bill Johnson 's Restau-
rant filed a civil suit for libel against its employees for a
retaliatory purpose. Matters such as motive, pretext, and
context are inapplicable under Bill Johnson 's when a mer-
itorious case in another tribunal is under Board scrutiny,
even though such considerations are the stuff of which
many 8(b)(4) findings are made in other circumstances.
In light of these considerations, I conclude that the Re-
spondent herein did not violate Section 8 (b)(4)(ii)(B) of
the Act by filing a grievance with the joint board under
its collective-bargaining agreement, and that the joint
board did not violate the Act in resolving the grievance
in favor of the Respondent.
Upon the foregoing findings of fact , and upon the
entire record herein considered as a whole, I make the
following
1314 DECISIONS OF NATIONAL
CONCLUSIONS OF LAW
1. Emery Air Freight Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent Truck Drivers, Oil Drivers, Filling Sta-
tion and Platform Workers' Union , Local 705, affiliated
with the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By threatening to engage in illegal strikes, and by
striking Emery Air Freight Corporation for the purpose
of forcing Emery to cease doing business with DPD, the
Respondent violated Section 8(b)(4)(ii)(B) of the Act.
LABOR RELATIONS BOARD
The aforesaid unfair labor practices have a close, inti-
mate, and substantftl effect on commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices , I will recommend that they be
required to cease and desist therefrom and to take certain
affirmative actions which are designed to effectuate the
purposes and policies of the Act . I will recommend that
the Respondent be required to post the usual notice in-
forming its members of their rights and of the results in
this case.
[Recommended Order omitted from publication.]