Teamsters, Local No. 85

National Labor Relations Board - Board Decisions

Jun 14, 1976

224 N.L.R.B. 801 (N.L.R.B. 1976)

TEAMSTERS, LOCAL NO 85
Brotherhood of Teamsters & Auto Truck Drivers Lo-
cal No 85, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Pacific Maritime Association and Interna-
tional Longshoremen 's and Warehousemen's Union
Brotherhood of Teamsters & Auto Truck Drivers Lo-
cal No 85, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca and California Trucking Assoc iation Cases 20-
CD-266 and 20-CD-453
June 14, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On February 6, 1976, Administrative Law Judge
Jerrold H Shapiro issued the attached Decision in
this proceeding Thereafter, the Respondent filed ex-
ceptions and a supporting brief, the General Counsel
filed limited exceptions and a supporting brief, the
Pacific Maritime Association filed cross-exceptions
and a brief, and the California Trucking Association
filed cross-exceptions and a supporting brief as well
as an answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Brotherhood of Team-
sters & Auto Truck Drivers Local No 85, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, San Francisco,
California, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order
i Both the California Trucking Association and the Respondent have ex
cepted to credibility findings made by the Administrative Law Judge It is
the Board s established policy not to overrule an Administrative Law
Judge s resolutions with respect to credibility unless the clear preponder
ante of all of the relevant evidence convinces us that the resolutions are
incorrect Standard Dry Wall Products Inc 91 NLRB 544 (1950) enfd 188
F 2d 362 (C A 3 1951) We have carefully examined the record and find no
basis for reversing those findings
DECISION
STATEMENT OF THE CASE
801
JERROLD H SHAPIRO, Administrative Law Judge Upon
charges filed by Pacific Maritime Association, herein
called PMA, in Case 20-CD-266 on December 2, 1968,
and by California Trucking Association, herein called
CTA, in Case 20-CD-453 on March 27, 1975, as amended
on June 9, 1975, the General Counsel of the National La-
bor Relations Board, herein called the Board, by the Re-
gional Director of the Board for Region 20, on July 15,
1975, issued an order consolidating these cases and a con-
solidated complaint against Brotherhood of Teamsters &
Auto Truck Drivers Local No 85, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein called Respondent, alleging that Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(D) of the National
Labor Relations Act, as amended, herein called the Act
Respondent filed an answer denying the commission of
any unfair labor practices The matter was heard in San
Francisco, California, on December 2, 1975
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following
FINDINGS OF FACT
I THE EMPLOYERS AND THE LABOR ORGANIZATIONS INVOLVED
PMA is an employer association whose members are
stevedore, terminal, and shipping companies, and their
agents, engaged in the movement of cargo on ocean going
vessels to and from Pacific Coast ports of the United
States, which, inter alra, is authorized to enter into collec-
tive-bargaining agreements on behalf of its members Dur-
ing the past calendar year the employer-members of PMA
engaged in the movement of cargoes from ports in the
State of California to ports outside the State of California,
and other States of the United States, and ports in foreign
countries, and received in excess of $100,000 in payment
thereof
CTA is an employer association whose members are en
gaged in the trucking and transportation industry in
Northern California, which, inter alia, is authorized to en-
ter into collective-bargaining agreements on behalf of its
members During the past calendar year the employer-
members of CTA covered by said collective bargaining
agreements derived at least $50,000 gross revenues for serv-
ices in connection with the transportation of goods and
supplies in interstate commerce
Richmond Export Services Company is located in Rich-
mond, California, where it is engaged in the business of
transporting cargo in interstate commerce During the past
calendar year Richmond Export Services Company de-
rived in excess of $50,000 for services connected with the
transportation of cargo in interstate commerce
224 NLRB No 114
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the foregoing I find that PMA and CTA and
their employer-members and Richmond Export Services
Company each constitute an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act
and that it will effectuate the purposes of the Act to assert
jurisdiction herein
The Respondent, Brotherhood of Teamsters & Auto
Truck Drivers Local No 85, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and International Longshoremen's and
Warehousemen s Union, herein called ILWU, are labor or-
ganizations within the meaning of Section 2(5) of the Act
II THE ESSENTIAL QUESTIONS TO BE DECIDED
The essential questions to be decided are whether the
Respondent filed contractual grievances against several
members of CTA for an object proscribed by the Board's
Decision and Determination of Disputes issued in Case
20-CD-266 and whether the filing of these grievances con-
stitute threats, restraint, or coercion within the meaning of
Section 8(b)(4)(ii)(D) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
1 Case 20-CD-266
This case (20-CD-266) involves the loading and unload-
ing of containers used for oceangoing cargo on and off
truck chassis at piers in San Francisco, California In early
December 1968, PMA filed unfair labor practice charges
with the Board alleging in substance that Respondent was
engaging in conduct proscribed by Section 8(b)(4)(i) and
(ii) of the Act in furtherance of a jurisdictional dispute
between Respondent and ILWU over the aforesaid work
and therefore was in violation of Section 8(b)(4)(i) and
(n)(D) of the Act A Board hearing was conducted from
February 1969 through June 15, 1972, pursuant to Section
10(k) of the Act to resolve the jurisdictional dispute Dur-
ing the course of the 10(k) hearing evidence was presented
which Respondent, in the instant proceeding, does not dis-
pute and which establishes that Respondent during De-
cember 1968 threatened Marine Terminals Corporation
(MTC) and American President Lines (APL), members of
PMA, with a work stoppage at various piers in San Fran-
cisco, and encouraged individuals employed by Rmgsby
Pacific Limited and System 99, members of CTA, to en-
gage in refusals in the course of their employment to per-
form services at piers in San Francisco, and picketed the
operations of seven employer members of PMA I at piers
in San Francisco, with an object to force or require MTC
to assign the work of loading and unloading containers on
truck trailers at piers in San Francisco, including pier 80-
A, to employees who were members of or represented by
Respondent, rather than to employees who were members
of or represented by the ILWU
i MTC APL Yamashito Shinhanon United Philippine Lines State
Lines Pacific Oriental Terminal and Japan Lines
On February 11, 1974, in Cage 20-CD-266 the Board
issued its Decision and Determination of Disputes,2 find-
ing reasonable cause to believe that Section 8(b)(4)(D) was
being violated Accordingly, the Board proceeded to a de-
termination of the jurisdictional dispute on its merits and
awarded the work involved in the instant unfair labor prac-
tice proceeding-"the removal of containers from, and the
placing of containers on, truck trailers by MTC at piers
located in San Francisco, California"-to the employees
represented by the ILWU The Board held that Respon-
dent was "not entitled, by means proscribed by Sectior
8(b)(4)(D) of the Act, to force or require the Employer to
award the work described" above to Respondent's mem-
bers or the employees it represents Furthermore, the
Board ordered Respondent to notify the Regional Director
in writing whether or not it would refrain from forcing or
requiring the Employer, by means proscribed by Section
8(b)(4)(D), to award the work in dispute to [its] members or
to employees [it] represents rather than to employees repre-
sented by the ILWU "
On February 21, 1974, Respondent and its co-respon
dent Teamsters Local No 70, by letter, advised the Re-
gional Director that they would refrain from forcing or
regi.irmg the Employer, by means proscribed by Section
8(b)(4)(D), to award the work in dispute to the employees
they represented rather than to employees represented by
the ILWU The letter went on to state Respondent's under-
standing of the Board's Decision and Determination of
Disputes, as follows
The foregoing statements of compliance are based
upon the Board's Decision and Determination as Lo-
cals 70 and 85 understand it Specifically, these Local
Unions do not understand the Board to make an
award of work contrary to their interests which is pres-
ently being performed by employers who are not
members of Pacific Maritime Association and with
whom they have had existing contractual relationships
for container work I make specific reference to motor
carriers, and perhaps others, who customarily perform
container work, have never hired longshoremen to
perform such work, and who have established collec-
tive bargaining relationships with Locals 70 and 85, as
the case may be Similarly, Locals 70 and 85 do not
understand the Board's Decision and Determination
to prohibit or in any way interfere with arrangements
which the Pacific Maritime Association or its mem-
bers may wish to make with such motor carriers or
others for container work under conditions wherein
employees represented by Locals 70 or 85 may per-
form the work
Finally it is the understanding of Locals 70 and 85
that the Board's Decision and Determination does not
affect any existing contractual relationships relating to
container work such as the long-established collective
bargaining agreement between Local 70 and Sea
Land
2 Brotherhood of Teamsters & A uto Truck Drivers Local No 85 Internation
al Brotherhood of Teamsters Chauffeurs Warehousemen & Helpers of Amen
ca (Pacific Maritime Association) 208 NLRB 1011 (1974)
TEAMSTERS, LOCAL NO
If there is any question about the foregoing, I will
expect to hear promptly from your office
PMA objected, contending that the letter did not constitute
full compliance with the Board's award The Regional Di-
rector rejected this contention and by letter of April 26,
1974, notified the parties that he was refusing to issue a
complaint inasmuch as "there is no evidence to show that
[Respondent] has failed to abide by the Decision and De-
termination of Disputes, or that it has engaged in any con-
duct inconsistent therewith " An appeal was taken from
this ruling but was denied by the Board's General Counsel
by letter of May 31, 1975, which reads
The appeal is denied substantially for those reasons
set forth in the Regional Directors letter of April 26,
1974 The statements of understanding contained in
the Unions' counsel's letter of February 21, 1974, were
not deemed to repudiate or negate the Unions' assur-
ances of compliance with the Board's Decision and
Determination of Disputes (208 NLRB 1011), since
they addressed matters which appear to be outside the
ambit of the Board's Decision in these cases More
specifically, the Unions' letter did not indicate an in-
tent to persist with their objects to obtain work by
proscribed means which had been the basis of the
charges giving rise to these proceedings
The charge in Case 20-CD-453 was filed on March 27,
1975, and following its investigation and concurrently with
the issuance of the consolidated complaint in the instant
proceeding the Board's Regional Director notified Respon-
dent, by letter, that the investigation had established that
Respondent was engaging in coercive conduct inconsistent
with good faith compliance with the Board's Decision and
Determination of Disputes issued in Case 20-CD-266, and
in view of this, the prior dismissal of the charges against
Respondent in Case 20-CD-266 was rescinded and the
case reopened
2 Case 20-CD-453
The charge in this case (20-CD-453) was triggered by
events which occurred in connection with the loading and
unloading of containers on and off truck chassis at pier 80-
A in San Francisco, California The shipping line involved
which uses this pier is State Steamship Company which for
several years had an oral agreement with an independent
forklift service, Globe-Wally, to perform work on the pier
including loading and unloading containers on and off
truck trailers The practice was for the several motor car-
riers involved herein to make arrangements with State
either to pick up containers at the pier or deliver them to
the pier, where employees of Globe-Wally using forklifts
would load and unload the containers on and off the truck
trailers Globe-Wally's employees were represented by Re-
spondent and covered by the "Local Pickup and Delivery"
collective-bargaining agreement Likewise, the employees
of each trucking company involved herein were repre-
sented by Respondent and covered by the Local Pickup
and Delivery collective-bargaining agreement
In November 1974, State decided to change its method
85 803
of operation and to use MTC rather than Globe-Wally to
load and unload the containers MTC does not use fork
lifts, instead it uses straddle carriers, a much larger piece of
equipment MTC s employees, who operate straddle car
riers, are longshoremen represented by the ILWU
In November 1974 when Respondent's business agent,
Robert Sick, learned of State s intent to replace Globe-
Wally with MTC he spoke to Udl Mehlberg, State's termi-
nal superintendent, about the matter Sick indicated he was
upset about State 's plan to shift the work of loading and
unloading the containers at pier 80-A to MTC from
Globe-Wally and warned that State "could not proceed
with this and that he would shut down" pier 80-A Mehl-
berg referred Sick to the Board's 10(k) determination in
Case 20-CD-266 and took the position that this determi
nation gave State the right to use MTC Sick was not famil-
iar with the content of the Board's 10(k) determination and
indicated this to Mehlberg, asked him for the citation and
stated that before causing any kind of disruption he want-
ed to read the Board's determination and consult with
Respondent's attorney Sick consulted with Respondent's
attorney who, in writing, explained what the award meant
Respondent took no economic action, as threatened, and
in January 1975 State canceled its agreement with Globe-
Wally and entered into an agreement with MTC MTC's
employees using straddle carriers, pursuant to this agree-
ment, commenced to load and unload the containers on
and off the truck trailers on pier 80-A When Sick learned
of this he visited the pier and copied the names of the
trucking companies who were delivering and picking up
the containers which MTC's employees were loading and
unloading Mehlberg asked Sick his purpose in writing the
names of the trucking companies Sick stated that Respon-
dent intended to file "money grievances" against the truck
lines but assured Mehlberg that Respondent had no griev-
ance with State, that its grievance was against CTA, the
trucking companies' bargaining representative
On January 29, 1975, and continuing into February
1975, Sick, on behalf of Respondent, filed a series of writ-
ten grievances pursuant to the Local Pickup and Delivery
collective-bargaining agreement against 10 different truck-
ing companies who had delivered and/or picked up con-
tainers at pier 80-A and were signatory to this collective-
bargaining agreement 3 The grievances which in pertinent
part are identical' state that the Employer violated article
47 of the Pickup and Delivery collective- bargaining agree-
ment `by having ILWU longshoremen unloading and
loading equipment [referring to containers] at pier 80-A
State Lines, San Francisco-[date]," and in the portion of
the grievance form entitled, "relief being sought" asks for
"payment of lost wages for [date] '
The grievances were placed on an agenda for hearing by
a grievance panel under the disputes settlement procedures
3 The trucking companies are Alltrans Express Morris Draying Compa
ny Pacific Motor Trucking Company S S I Container Shima Transfer
Company Shippers Imperial Inc Garden City Trucking Inc Santa Fe
Trail Transportation R E Ellis Draying Co Inc and Richmond Export
Services Company All except Richmond Export Services Company are rep
resented by CTA for purposes of collective bargaining
° All 18 of the grievances filed herein pertain to the loading and unload
mg of containers on pier 80-A except one which pertains to pier 96
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the collective-bargaining agreement, but were not heard
or decided The cases were not reached for hearing on the
date originally scheduled, and before they could be re-
scheduled the charge in Case 20-CD-453 was filed by
CTA Thereafter, the grievances were held in abeyance by
mutual consent of CTA and Respondent pending a deter-
mination by the Board in the present case
In connection with the grievances filed against three of
the trucking companies, Morris Draying Company, Pacific
Motor Trucking Company, and Sante Fe Trail Transporta-
tion, Business Agent Sick spoke to their representatives Al-
dred Wheeler, Gary Adams, and Harold Roach on Janu-
ary 29 and 30 and February 11, 1975, respectively
Sick told Wheeler that he would have to file a money
claim against Morris Draying because the truckdrivers em-
ployed by Morris Draying had permitted a steamship
company's employees to unload a container from a truck
chassis at pier 80-A Wheeler stated that his company had
absolutely no control over this work Sick replied that "it
was [Morris Draying's] responsibility under the Pickup and
Delivery Agreement to require that teamsters load and un
load these containers " Wheeler repeated that his company
had no control and could do nothing about the matter
Sick indicated he "understood" Wheeler's position but
would have to file a money claim
Sick told Adams that Pacific Motor Trucking Company
(PMT) had violated article 47 of the Pickup and Delivery
agreement by allowing persons other than teamster forklift
operators to unload containers Adams replied that PMT
had no control over this work which was the steamship
company's responsibility Sick took the position that since
PMT was in control of the containers that it had the re-
sponsibility to make sure that teamster forklift operators
unloaded the containers from the truck trailers 5
Sick told Roach that his company, Santa Fe Trail Trans-
portation, had picked up a trailer at State which was load-
ed onto the chassis by longshoremen and that he was filing
a grievance because this work was claimed by the team-
sters Roach replied that Santa Fe Trail Transportation
had no control over this work but that it was the steamship
company's responsibility Sick stated that he realized this
"but it was his job to force the steamship lines through the
trucking companies to use teamster labor on forklifts,"
pointing out that this work had previously been done by
teamsters 6
Also on February 3, 1975, H K McDougald, a repre
sentative of CTA, the collective-bargaining agent of virtu-
ally all of the truckers against whom Respondent has filed
grievances , upon receipt of several of the grievances tele-
phoned Sick McDougald asked who Sick was claiming lost
wages for Sick stated that it was for the "teamster local 85
forklift drivers at the piers" who had been replaced by the
ILWU operators McDougald stated that article 47, relied
on by Respondent in support of its claim, quite clearly
5 During the aforesaid conversation Sick specifically mentioned Globe
Wally however there is no indication of the context in which it was men
honed Sick did not testify about this conversation
6 The description of Sick s conversation with Roach is based on Roach s
credible testimony Sick specifically denied stating that it was his job to
force the steamship lines through the truckers to use teamsters Roach im
pressed me as the more trustworthy witness
indicated that the operation of power equipment on the
piers was at the discretion of the receiver and carrier by
mutual agreement McDougald further stated that the mo-
tor carriers could not force State to use teamsters rather
than ILWU personnel because it was a matter outside their
control and, while CTA desired to protect its employer-
members who were in the business of operating forklifts,7
that the container problem was outside its control and
Sick's fight was with PMA and State Line,8 not with CTA
and its employer-members Sick replied, "well CTA ha(s) a
lot of juice, maybe you ought to tell your members not to
haul these containers into the State Line pier unless our
forklift drivers do unload them "
B Discussion and Ultimate Findings
1 The Board's authority to reopen Case 20-CD-266
The Board's Decision and Determination of Disputes in
Case 20-CD-266 in relevant part awarded the disputed
work to the employees employed by PMA's employer-
members represented by the ILWU Accordingly, the
Board held that Respondent was not entitled to use means
proscribed by Section 8(b)(4)(D) to force or require MTC,
a member of PMA, to award the disputed work to employ-
ees represented by Respondent Furthermore, the Board
ordered Respondent to notify the Board's Regional Direc-
tor for Region 20, in writing, that it would refrain from
engaging in the aforesaid conduct Respondent furnished
this written notice which was accepted as being in compli-
ance with the 10(k) determination The Board' s Regional
Director notified the parties, including Respondent, that
`further proceedings are not warranted at this time and,
therefore, I am refusing to issue complaint in this [Case 20-
CD-266] '
Respondent contends that the Board lacks authority to
reopen Case 20-CD-266 because the Board's Rules and
Regulations contain no provision for reopening such a case
once the charge has been dismissed If Respondent is cor-
rect then the allegations in the consolidated complaint per-
taining to Case 20-CD-266 must be dismissed since they
are time-barred by the 6-month limitation period con-
tained in Section 10(b) of the Act Likewise, the allegations
pertaining to Case 20-CD-453 must be dismissed inas-
much as the scheme of the statute requires that a 10(k)
determination be made as a condition precedent to any
unfair labor practice proceeding In other words,
Respondent's position leads to the conclusion that a writ-
ten promise by a respondent union to obey a 10(k) determi-
nation, which under the Board's procedures results in the
dismissal of the underlying 8(b)(4)(D) charge, would pre-
vent the Board from reopening the matter even if respon-
dent union thereafter brazenly flouted the determination
The injured employer and union would be forced to file a
new charge and the Board would be forced to institute
another 10(k) proceeding prior to adjudging the respon-
7 Globe Wally was a member of CTA for collective bargaining purposes
and as noted above its employees were covered by the same collective
bargaining agreement as the trucking companies
R PMA represented State and MTC for purposes of collective bargaining
with the ILWU
TEAMSTERS, LOCAL NO 85 805
dent union in violation of the Act I do not think either the
Act or the Board's Rules and Regulations calls for such a
result which does violence to Sections 8(b)(4)(D) and 10(k)
of the Act
Jr my opinion, Respondent's letter to the Board's Re-
gional Director promising not to engage in conduct pro-
scribed by Section 8(b)(4)(D) to capture the disputed work
and the Regional Director's refusal to issue a complaint,
based upon the Respondent's promise, constitute an agree-
ment between Respondent and the Board which implicitly
gives the Board the right to set aside the agreement and
reopen Case 20-CD-266 if Respondent fails to comply
with its part of the agreement In similar circumstances it
has long been settled that where promises embodied in a
settlement agreement have been breached, the Board is
justified in vacating the agreement and reinstituting the
initial proceeding, for, as the Supreme Court has said,
where the purpose of a settlement is defeated it becomes
the Board's "duty to take fresh steps to prevent frustration
of the Act " The Wallace Corporation v N L R B, 323 U S
248, 254 (1944) Although the instant case is apparently
one of first impression, the Board in Bechtel9 has indicated
that a promise to comply with a 10(k) determination, if
accepted by the Board's Regional Director, is analogous to
a settlement agreement which unless complied with results
in the reopening of the underlying 8(b)(4)(D) charge The
Board stated
In the 10(k) proceeding involved herein the Board de-
termined that the Respondents were not lawfully
entitled to engage in certain conduct If that had been
an 8(b)(4)(D) proceeding and the Board found that
the Respondents had violated the Act, the remedy
would have been an order restraining them from doing
that which we held they might not lawfully do How
ever, Section 10(k) gives a respondent union the op-
portunity to forestall such an order by complying with
the Board's determination But since the ultimate ob-
jective of a 10(k) and an 8(b)(4)(D) proceeding is the
same-to obtain cessation of the particular conduct-
the measure of compliance should likewise be the
same Otherwise, compliance would be meaningless
and the statutory purpose of providing an effective
voluntary substitute for compulsory remedial action
would be thwarted and frustrated
In our opinion, the minimal requirement for a find-
ing of compliance with a 10(k) determination ought to
be a manifested good-faith intent by the particular re-
spondents to accept and abide by the Board's determi-
nation and to refrain from then and in the future from
doing that which the determination has stated may not
rightfully be done (At 814)
For these reasons I find that if the record establishes
Respondent has engaged in conduct, as alleged in the con-
solidated complaint, which is proscribed by Section
8(b)(4)(ii)(D) of the Act and constitutes noncompliance
with the 10(k) determination in Case 20-CD-266, then the
Board may reopen that proceeding and base a violation of
9 Local 595 International Association of Bridge Structural and Ornamental
Iron Workers A FL (Bechtel Corporation) 112 NLRB 812 (1955)
the Act upon (1) the admittedly unlawful conduct de-
scribed above which antedated the 10(k) determination
and (2) the conduct alleged in Case 20-CD-453 which
postdated the 10(k) determination 10
2 Did Respondent file the contractual grievances against
the trucking companies for an object proscribed by
Section 8(b)(4)(D) of the Act
The sole violation alleged postdating the 10(k) determi-
nation is Respondent's act of filing the contractual griev-
ances against the trucking companies which the consolidat-
ed complaint in substance alleges were filed with an object
to force the trucking companies to assign the work of load-
ing and unloading containers on and off truck trailers at
pier 80-A to teamsters represented by Respondent rather
than longshoremen represented by the ILWU, thus violat-
ing the Board s 10(k) determination in Case 20-CD-266
and Section 8(b)(4)(ii)(D) of the Act Respondent con-
tends, "there is nothing in the Section 10(k) award, nor in
the Act, which prohibits the filing of grievances to protest
the failure of an employer to permit bargaining unit em-
ployees to perform bargaining unit work, even though the
employer may have a defense of impossibility," citing, Lo
cal 450, International Union of Operating Engineers, AFL-
CIO (The Austin Company), 119 NLRB 135 (1957), and
Local 373, United Association of Journeymen and Appren
tices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, (Carleton Brothers Co), 137 NLRB 628
(1962) In other words Respondent urges that it has not
sought for its members work that belongs to employees
represented by the ILWU, but only asks that the trucking
companies comply with their contract with Respondent
An evaluation of this contention, which has an attractive
simplicity, requires the consideration of two elements (1)
Whether an object of Respondent was to force or require
the truckers to assign the disputed work to its members
rather than to employees who are members of ILWU, and
(2) If this was an object, how is it affected because it was
pursued through the use of a contractual grievance proce-
dure
In determining Respondent's object in filing the griev-
ances involved herein I have evaluated the totality of the
evidence and conclude that an object of Respondent was
to assert a jurisdictional claim-to force an assignment of
the disputed work to teamsters whom it represented rather
than to longshoremen represented by the ILWU-not sim-
ply to compel compliance with its collective-bargaining
agreement This conclusion is based upon the following
considerations
(1) The terms of the governing collective-bargaining
agreement indicate that the grievances filed by Respondent
are palpably without merit
10 I reject General Counsels contention that something less than conduct
proscribed by Sec 8(b)(4)(D) is sufficient to prove noncompliance with the
Board s 10(k) determination Here the 10(k) determination unambiguously
prohibits Respondent from only using means proscribed by Sec 8(b)(4) to
capture the disputed work The cases cited by the General Counsel do not
involve affirmative conduct but rather involve the question of whether fail
ure to give the required written notice constitutes noncompliance which
justifies prosecution of an 8(b)(4)(D) charge This is not involved in the
instant case
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The grievances , which are identical , assert and Respon-
dent contends , that the truckers violated section 1(a) of
article 47, entitled "work jurisdiction," which in relevant
part provides , "only persons working under the jurisdiction
of this Agreement shall load and unload trucks, trail
ers, vans or any other type of equipment used in connec-
tion with trucks " However, section 2(d) of article 47, enti-
tled "Work at Premises of Shippers and Consignees,
provides in relevant part, "loading and unloading with me-
chanical equipment onto or into trucks , trailers, or vans
may be performed by such employees as the Employer
and the consignee or shipper may agree " Thus, the section
of the agreement which deals specifically with the type of
work involved in this case unambiguously allows the truck-
ing companies without limitation to enter into an agree-
ment with the consignee or shipper concerning the employ-
ees who shall perform the disputed work Respondent
introduced no evidence to contradict the plain language of
the agreement Moreover , that it was not the intent of the
collective-bargaining agreement to hold the trucking com-
panies responsible for the employment of teamsters to load
and unload the containers at the piers is demonstrated fur-
ther by the fact that the trucking companies, with
Respondent 's knowledge , even prior to the effective date of
the agreement, lacked control or authority over this work
or over the employees who performed the work
(2) The trucking companies ' lack of control and authori-
ty over the loading and unloading of the containers and the
employment of the employees who perform this work, in
the circumstances of this case , indicate that the grievances
filed by Respondent were tactically calculated to satisfy
Respondent 's jurisdictional claim to this work t i
The grievances charged the trucking companies with vio
lating their collective-bargaining agreement "by having
ILWU longshoremen unloading and loading equipment at
pier 80-A, State Line ," and asked for payment of lost wag-
es But the decision to employ teamsters or longshoremen
was that of State and MTC The truckers had no discretion
about this matter It was the decision of State and MTC
which Respondent found objectionable Respondent knew
that its alleged effort to protect or preserve bargaining unit
work by filing the instant grievances was doomed to fail
unless State contracted out the disputed work to an em-
ployer who employed teamsters rather than longshoremen
Likewise Respondent knew that the trucking companies
had only two courses of action , they either could continue
to deliver and pick up at pier 80-A and pay money dam-
ages or terminate their business relationships with State 12
11 Although Respondent makes no claim to represent MTC s employees
and did not ask MTC to hire teamsters rather than longshoremen it is no
defense inasmuch as the Board has held that the applicability of Sec
8(b)(4)(D) is not limited to competing groups of employees working for the
same employer but also extends to attempts as here to force the indirect
assignment of work from employees of one employer (MTC) to employees
of another (Globe Wally or another independent forklift company repre
sented by the Respondent ) Local Union No 3 International Brotherhood of
Electrical Workers AFL-CIO (Western Electric Company Incorporated) 141
NLRB 888 894 (1963) enfd 339 F 2d 145 (C A 2 1964)
12 Of course there is a third course of action namely fighting the griev
ances through the contractual grievance machinery However this is not a
realistic alternative inasmuch as the contractual grievance machinery does
not end in binding arbitration but in the event of a deadlock the Respon
dent may use economic means to enforce its interpretation of the agree
The first course, as Respondent must have known, was
completely uneconomical and the second course would not
have preserved or produced work for the unit employees
represented by Respondent , it would instead deprive team-
sters employed in the unit-the truckdrivers-of work
Thus, it is apparent that Respondent 's grievances were self-
defeating They could only result in Respondent losing
more unit work unless the trucking companies under the
threat of the money damages pressured State to assign the
disputed work to teamsters or to an employer that em-
ployed teamsters As Respondent 's business agent, Sick,
explained to Trucking Company Superintendent Roach, it
was Sick's job "to force the steamship lines through the
trucking companies to use teamster labor on the forklifts "
These circumstances , in my view , establish that when Sick
filed the grievances he filed them with the intent to utilize
them as a device to exert pressure on State and MTC
through the trucking companies so as to compel an assign-
ment of the disputed work to the teamsters represented by
Respondent rather than to the longshoremen represented
by ILWU
(3) That Respondent's grievances were filed against the
trucking companies not in good faith to enforce the collec
tive-bargaining agreement but as a weapon to satisfy its
jurisdictional claim to the work of loading and unloading
trucks on pier 80-A is further established by Business
Agent Sick's initial reaction to State's use of MTC rather
than Globe-Wally and his admission made to Trucking Su-
perintendent Roach
Upon learning that State intended to replace Globe-
Wally with MTC which would result in the replacement of
teamsters by longshoremen rather than threaten the truck-
ing companies with a contractual grievance if they allowed
this to occur or otherwise speak to the trucking companies
about the matter , Sick visited State s terminal manager and
warned that if State went ahead and replaced Globe-Wally
with MTC that Respondent "would shut down the pier "
Also, as described earlier, when Trucking Superintendent
Roach complained that his company had no control over
the disputed work, Sick acknowledged this but explained
that it was Sick's job "to force the steamship lines through
the trucking companies to use teamster labor on the fork-
lifts "
Based on the foregoing I am convinced that the record
establishes by a preponderance of the evidence that Re-
spondent filed the grievances against the trucking compa
nies with an object of forcing and requiring the assignment
of the work of loading and unloading containers on truck
trailers at pier 80-A to employees who were represented by
Respondent rather than to employees who were repre-
sented by the ILWU and employed by MTC, a member of
PMA 1i
ment Simply stated the trucking companies were faced with the prospects
of a strike if they failed to accede to Respondents demand
13 Having sought the assignment of the disputed work from one group of
employees to another the fact that Respondent rests its claim upon its
collective bargaining agreement does not detract from the jurisdictional na
ture of the dispute (Local 19 International Longshoremen s Association
AFL-CIO (Marine Association of Chicago) 151 NLRB 89 94-95 (1965) )
especially where as here Respondents contractual claim was not a bona
fide one but a device to satisfy its jurisdictional claim It is because of this
last consideration that the cases cited by Respondent supra as well as
International Longshoremen s and Warehousemen s Union Local 8 (Waterway
TEAMSTERS , LOCAL NO 85 807
In concluding that the record establishes a jurisdictional
objective as distinct from solely a cease-doing-business ob-
jective, I have relied upon the wording of the grievances-
"Company in violation of having violated Art 47, J C 7
Local Pickup and Delivery Agreement by having ILWU
Longshoremen (rather than teamsters) unloading and load-
ing equipment at pier 80-A"-and the several statements
made by Business Agent Sick to trucking company repre-
sentatives in connection with the filing of the grievances
Sick told Wheeler that it was the trucking company's re-
sponsibility to require that "teamsters" rather than "steam-
ship employees" perform the disputed work, told Adams
that it was the trucking company's responsibility to make
sure that "teamsters" rather than other persons did the dis-
puted work, told Roach that it was Sick's job to compel the
steamship lines to use "teamsters" to perform the disputed
work rather than "longshoremen', and told McDougald
that the trucking companies should stop doing business
with State unless "our forklift drivers" (teamsters) do "the
disputed work "
I realize that the more typical 8(b)(4)(D) situation in-
volves only a single employer while here, as in the typical
8(b)(4)(B) case, there are several involved But the terms of
the statute do not expressly limit 8(b)(4)(D) to cases where
competing groups of employees are employed by the same
employer and the Board has already heard and rejected
this contention Local Union No 3 IBEW (Western Elec
tric), supra Likewise, the General Counsel is not precluded
from proceeding under Section 8(b)(4)(D) because the evi-
dence shows that Respondent acted with an object of sub-
jecting a neutral employer to pressures designed to cause a
cessation of business with the primary employer, i e , an
8(b)(4)(B) object, for, the same set of facts may be cogniz-
able under both Section 8(b)(4)(D) as well as 8(b)(4)(B)
Local No 5, United Association of Journeymen and Appren
tices of the Plumbing and Pipe Fitting Industry of the United
States and Canada AFL-CIO (Arthur Venneri Co) v
NLRB, 321 F 2d 366, 371 (CAD C), cert denied 375
U S 921 (1963) Here, the wording of the grievances and
the oral statements of the Respondent's business agent sup-
port a finding that Respondent's grievances seeking money
damages were filed with an object, in part, to satisfy
Respondent's jurisdictional claim in addition to coercing
employees to cease doing business with each other to ac-
complish this object 14 Cf International Brotherhood of
Electrical Workers, AFL-CIO, Local No 145 (Camanche
Machine Tool Company, Inc), 188 NLRB 255 (1971)
3 Did the contractual grievances filed by Respondent
constitute impermissible threats, restraint, or coercion
within the meaning of Section 8(b)(4)(u) of the Act
Section 8(b)(4)(ii)(D), so far as pertinent, makes it an
unfair labor practice for a union to "threaten, coerce or
Terminals Company) 185 NLRB 186 (1970) are distinguishable from the
instant situation
14 The consolidated complaint does not specifically allege this but is
worded in terms of Respondent forcing and requiring the trucking compa
restrain" any person when an object thereof is forcing any
employer to assign particular work to employees in a par-
ticular labor organization rather than to employees in an-
other labor organization Respondent contends that assum-
ing its grievances were filed with the intent of ac-
complishing an impermissible object that there is still no
unfair labor practice established inasmuch as the filing of a
contractual grievance for money damages does not consti
tute evidence of ` threats, coercion, or restraint" within the
meaning of Section 8(b)(4)(u), citing Sheet Metal Workers
International Association Local Union No 49 (Los Alamos
Constructors Inc), 206 NLRB 473 (1973) In this regard,
the cases seem to hold that resort to contractual procedures
for the assessment of monetary damages against employers
for alleged violations of work assignment provisions may
or may not constitute impermissible threats, coercion, or
restraint, depending on the circumstances See Acco Con
struction Equipment, Inc v NLRB , 511 F 2d 848 (C A 9,
1975), enfg International Union of Operating Engineers, Lo
cal Union No 12 (Acco Construction Equipment, Inc), 204
NLRB 742 (1973), and Associated General Contractors of
California Inc v NLRB , 514 F 2d 433 (C A 9, 1975),
reversing Southern California Pipe Trades District Council
No 16 of the United Association etc (Associated General
Contractors of California, Inc), 207 NLRB 698 (1973), and
Los Alamos Constructors supra For, when Congress used
`coercion in [Section 8(b)(4)(D)] it did not intend to pro-
scribe only strikes or picketing, but intended to reach any
form of economic pressure of a compelling or restraining
nature " Associated General Contractors of Calif v
NLRB , supra at 438-439
Here, as found supra, the circumstances disclose that
Respondent's contractual grievances seeking money dam
ages were a contractual pretense adopted to mask coercive
pressure tactics in an effort to satisfy Respondent's juris
dictional claim The grievances were palpably without mer-
it Respondent knew that the trucking companies had no
control over the disputed work, and the admission of Busi-
ness Agent Sick that even though the trucking companies
lacked control the grievances were filed because "it was
(Sick s) job to force the steamship lines through the truck-
ing companies to use teamster labor on forklifts, are sig-
nificant indications that the grievances were filed as a coer-
cive tactic Also relevant in evaluating the coercive nature
of the grievances is the fact that the collective-bargaining
agreement's grievance procedure governing the disposition
of the grievances does not culminate in binding arbitration,
rather the Respondent has the option to strike and picket
the trucking companies if the grievances are not resolved
and Respondent's three representatives on the grievance
committee refuse to agree to arbitration Thus, the griev-
ances from the start contained an implicit threat of eco-
nomic reprisals if the truckers did not aid the Respondent
in its jurisdictional claim for the disputed work These cir-
cumstances in their totality indicate that Respondent's use
mes to reassign the disputed work I am convinced however that the coin
plaint as worded is sufficient to encompass the above finding and in any
event the matter was fully and fairly tried
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the contractual grievance procedure in connection with
its demand for payment of lost wages amounted to "thinly
disguise (d) clearly coercive tactics " Southern California
Pipe Trades District Council 16, supra 207 NLRB 698, 700
It is for these reasons that Los Alamos Constructors, relied
upon by Respondent , is significantly distinguishable from
the instant case In addition, unlike Los Alamos Construc
tors, here Respondent 's grievance , which is based upon the
fact that longshoremen were performing the disputed work
rather than teamsters , is in derogation of the Board s 10(k)
determination issued in Case 20-CD-266 In filing the
grievance Respondent was acting in defiance of the
"Board's superior authority " Cf Smith Steel Workers (A
0 Smith Corp ), 174 NLRB 235 (1969), enfd in part sub
nom Smith Steel Workers v A 0 Smith 420 F 2d I
(CA 7)
Based on the foregoing I find that Respondent ' s griev-
ances for money damages filed against the trucking compa
vies constitute threats, restraint , and coercion within the
meaning of Section 8(b)(4)(ii) of the Act
CONCLUSIONS OF LAW
Respondent rather than to employees represented by
ILWU
The work consists of
The removal of containers from, and the placing of
containers on, truck trailers by Marine Terminals
Corp, an employer-member of the Pacific Maritime
Association, at piers located in San Francisco, Califor-
nia
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices proscribed by Section 8(b)(4)(i) and (ii)(D)
of the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the purposes of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
1 Pacific Maritime Association and California Truck
ing Association and their employer members and Rich-
mond Export Services Company each is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act
2 Respondent and ILWU are labor organizations with-
in the meaning of Section 2(5) of the Act
3 Respondent has failed and refused to comply with the
Decision and Determination of Disputes issued by the
Board on February 11, 1974, and reported at 208 NLRB
1011
4 Respondent has engaged in unfair labor practices
proscribed by Section 8(b)(4)(1) and (n)(D) of the Act by
inducing and encouraging individuals employed by Rings-
by-Pacific Limited , System 99 , Marine Terminals Corpora-
tion, United Philippine Lines, Yamashito Shinhanon, State
Lines , Pacific Oriental Terminal , Japan Lines, and Ameri-
can President Lines , to refuse in the course of their em-
ployment to transport goods , articles , materials , or com-
modities and to perform services , and by threatening,
coercing, and restraining Marine Terminals Corporation,
American President Lines , Yamashito Shinhanon , United
Philippine Lines , State Lines, Pacific Oriental Lines, and
Japan Lines, an object thereof being to force or require
Marine Terminals Corporation to assign the work de-
scribed below to employees represented by Respondent
rather than to employees represented by ILWU
5 Respondent has engaged in unfair labor practices
proscribed by Section 8(b)(4)(ii)(D) of the Act by threaten-
ing, coercing , and restraining Alltrans Express , Morris
Draying Company , Pacific Motor Trucking Company,
S S I Container Corporation , Shima Transfer Company,
Shippers Imperial, Inc, Garden City Trucking , Inc, Santa
Fe Trail Transportation , R E Ellis Draying Co , Inc , and
Richmond Export Services Company, with an object there-
of being to force or require the aforesaid employers to as-
sign the work described below to employees represented by
ORDER15
Respondent, Brotherhood of Teamsters & Auto Truck
Drivers Local No 85, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
San Francisco, California, its officers, agents, and repre-
sentatives, shall
1 Cease and desist from inducing or encouraging any
individual employed by Ringsby-Pacific Limited, System
99, Marine Terminals Corporation, United Philippine
Lines, Yamashito Shinhanon, State Lines, Pacific Oriental
Terminal, Japan Lines, and American President Lines, or
by any other person engaged in commerce or in an indus-
try affecting commerce, to engage in a strike or a refusal in
the course of their employment to use, manufacture, pro-
cess, transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any ser-
vices, or threatening, coercing, or restraining Marine Ter-
minals Corporation, American President Lines, Yamashito
Shinhanon, United Philippine Lines, State Lines, Pacific
Oriental Terminal, Japan Lines, Alltrans Express, Morris
Draying Company, Pacific Motor Trucking Company
S S I Container Corporation, Shima Transfer Company,
Shippers Imperial, Inc, Garden City Trucking, Inc, Santa
Fe Trail Transportation, R E Ellis Draymg, Co, Inc,
and Richmond Export Services Company, or any other
employer or person engaged in commerce or in an industry
affecting commerce where, in either case, an object there-
of is to force or require Marine Terminals Corporation,
S S I Container Corporation, Morris Draying Company,
Pacific Motor Trucking Company, Shima Transfer Com-
15 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
TEAMSTERS LOCAL NO 85 809
pany, Shippers Imperial, Inc, Garden City Trucking, Inc,
Santa Fe Trail Transportation, R E Ellis Draying Co,
Inc, and Richmond Export Services, Co to assign the
work described below to employees represented by Broth-
erhood of Teamsters & Auto Truck Drivers Local No 85,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Respondent here-
in, rather than to employees represented by International
Longshoremen's and Warehousemen's Union The work
consists of
The removal of containers from, and the placing of
containers on, truck trailers by Marine Terminals
Corp, an employer-member of the Pacific Maritime
Association, at piers located in San Francisco, Califor-
nia
2 Take the following affirmative action designed to ef-
fectuate the policies of the Act
(a) Withdraw the several contract grievances seeking
money damages filed during January 1975 and February
1975 against Alltrans Express, Morris Draymg Company,
Pacific Motor Trucking Company, S S I Container, Shima
Transfer Company, Shippers Imperial, Inc, Garden City
Trucking, Inc, Santa Fe Trail Transportation, R E Ellis
Draying Co, Inc, and Richmond Export Services Compa-
ny
(b) Post in conspicuous places in its business offices,
meeting halls, and all other places where notices to mem-
bers are customarily posted copies of the attached notice
marked `Appendix " 16 Copies of said notice, on forms
provided by the Regional Director for Region 20 after
being duly signed by an authorized representative of Re-
spondent, shall be posted immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter
Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by
any other material
(c) Sign and mail sufficient copies of said notice to the
Regional Director for Region 20 for posting by the em-
ployer-members of Pacific Maritime Association, Califor-
nia Trucking Association, and Richmond Export Services
Company, where notices to their employees are usually
posted, if said employers are willing
(d) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
16 In the event that the Boards Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National 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
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any individual
employed by Ringsby-Pacific Limited, System 99, Ma-
rine Terminals Corporation, United Philippine Lines,
Yamashito Shinhanon, State Lines, Pacific Oriental
Terminal, Japan Lines, and American President Lines,
or by any other person engaged in commerce or in an
industry affecting commerce, to engage in a strike or a
refusal in the course of their employment to use, man-
ufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities
or to perform any services, or threatening, coercing, or
restraining Marine Terminal Corporation, American
President Lines, Yamashito Shinhanon, United Phil-
ippine Lines, State Lines, Pacific Oriental Terminal,
Japan Lines, Alltrans Express, Morris Draying Com-
pany, Pacific Motor Trucking Company, S S I Con-
tainer Corporation, Shima Transfer Company, Ship-
pers Imperial, Inc, Garden City Trucking, Inc, Sante
Fe Trail Transportation, R E Ellis Draying Co, Inc,
and Richmond Export Services Company, to assign
the work described below to employees represented by
Brotherhood of Teamsters & Auto Truck Drivers Lo-
cal No 85, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
rather than to employees represented by International
Longshoremen's and Warehousemen's Union The
work consists of
The removal of containers from, and the placing of
containers on, truck trailers by Marine Terminals
Corporation an employer-member of the Pacific
Maritime Association, at piers located in San Fran-
cisco, California
WE WILL withdraw the contract grievances seeking
money damages we filed against Alltrans Express,
Morris Draying Company, Pacific Motor Trucking
Company, S S I Container, Shima Transfer Company,
Shippers Imperial, Inc, Garden City Trucking, Inc,
Sante Fe Trail Transportation, R E Ellis Draying
Co, Inc, and Richmond Export Services Company,
during January and February 1975
BROTHERHOOD OF TEAMSTERS & AUTO TRUCK
DRIVERS LOCAL No 85, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA