Teamsters Local Union No. 688

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 496 (N.L.R.B. 1974)

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local Union No. 688, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America and
Fair Mercantile Company, Inc. Case 14-CC-906
June 12, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On February 25, 1974, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record 1 and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order for the reasons
set forth herein.
Fair Mercantile, a retailer of furniture, appliances,
carpeting, and related products, had, until March 1,
1970, employed drivers and helpers to deliver
merchandise to its local customers . On that date,
Fair entered into a contract with Sweeting Express
Lines whereby the latter undertook to perform the
aforementioned delivery services with employees
formerly employed by Fair. Under the arrangement,
Sweeting assumed Fair's collective-bargaining agree-
ment with the Union and on its expiration negotiated
a new agreement which terminated on November 1,
1973. Following expiration of this agreement the
Union picketed Fair's warehouse facility, where the
trucks owned by Fair and used by Sweeting are
usually kept, with signs stating "Employees of
Sweeting Express Lines Inc. working at this location
on strike...." The Union thereafter followed Fair's
trucks and picketed with similar signs when other
drivers, who had meanwhile contracted with Fair to
perform these delivery services, attempted to deliver
merchandise to the homes of Fair's customers. All
parties concede that the legality of this picketing,
which is here in issue , depends upon whether Fair is
a neutral which the Union seeks to enmesh in its
dispute with Sweeting or, on the other hand, whether
Fair and Sweeting are joint employers against whom
The Charging Party's request for oral argument is hereby denied, as the
record and the exceptions in our view adequately present the issues and
positions of the parties
2 Although it is not specifically recited in the aforementioned agreement,
the Union has taken primary action for legitimate
objectives.
On the facts and for the reasons set forth below, we
find, in agreement with the Administrative Law
Judge, that Fair and Sweeting are joint employers
and that the picketing here in question did not
violate Section 8(b)(4)(B) of the Act.
As previously stated, Fair contracted out its
delivery operations to Sweeting on March 1, 1970.
On that occasion, the parties entered into a written
agreement which, inter alia, recited that Sweeting was
to operate as an independent contractor with "full
control over the direction of his employees." By its
terms , Sweeting agreed to purchase and maintain
insurance protection against liability under ,any
Workmen's Compensation Act or any statute or law
for personal injuries sustained by his employees and
for injuries to, or deaths sustained by, any person or
persons other than his employees. For its part, Fair
agreed to own, maintain , and garage the trucks used
by Sweeting in performing delivery services for Fair,
to provide the necessary personal liability and
property damage insurance on the trucks involved,
and to pay Sweeting for these services on a piece rate
basis, depending upon the nature of the merchandise
delivered. This 1-year contract was automatically
renewable for similar, successive periods of time.2
Notwithstanding, few changes in the delivery
operation seem to have occurred following transfer
of these operations to Sweeting. As was formerly
done, employees would report to the Fair warehouse
facility, where the trucks were based, to obtain their
"tickets," load the trucks, and perform deliveries
according to prearranged routes. Aubrey Miller,
Fair's warehouse shipping superintendent, credibly
testified that drivers were assigned geographical
areas and trucks based on "historical considerations"
and seniority. Miller himself tentatively drew up the
route to be followed by the drivers in making their
deliveries, based on geographical considerations and
customer convenience. However, Miller had the
authority to, and did occasionally, assign employees
to work outside their regular areas . The drivers,
however, had the right to adjust the order of delivery,
so long as they informed Miller of any changes.
Normally six employees were used in this operation,
three drivers and three helpers: a driver and a helper
assigned to each of Fair's trucks. When sales volume,
and consequent delivery schedules, did not warrant
the use of all six regular employees, Miller would
designate those individuals to be placed in temporary
layoff status. These layoffs were based on seniority
Fair concedes that it assumed full responsibility for damage and loss of
merchandise arising in the course of delivery by Sweetmg's employees and
furnished , without cost to Sweettng , the gasoline required for the operation
of its trucks.
211 NLRB No. 71
TEAMSTERS LOCAL UNION NO. 688
status . On other occasions, when the delivery
demand required- the use of additional trucks and
employees, Mill -would obtain necessary help by
calling the Union's hiring hall, which would then
dispatch the needed employees to the Fair premises.
Employees would report to Miller when they
intended to absent themselves from work, either
because of illness or for other reasons. Miller, in turn,
would obtain temporary replacements for them.
Further, drivers would report truck breakdowns to
Miller and take action in accordance with his
instructions . Occasionally, Miller discussed working
problems and complaints with the Sweeting employ-
ees. On one occasion he undertook surveillance of a
Sweeting driver who was suspected of dallying on his
route, and on another, informed Warren Sweeting
when a truckdriver was operating on a suspended
license , but as to these instances , Miller disclaimed
any authority to discipline or otherwise to remedy
the problem.
At the hearing, Miller asserted that he was told by
Fair management that `-`I shouldn't do this for him
[Warren Sweeting] I mean it was his obligation but if
I wanted to do him a favor-but I shouldn't do it."
Miller stated, nevertheless, that at no time during the
entire period did. Fair management forbid his
performing the aforementioned functions. Indeed,
Miller states that he did so in Fair's own interest as
Sweeting visited the Fair facility infrequently and
was otherwise unavailable, since Sweeting himself
drove a truck in connection with other unrelated
delivery operations. In this connection, the testimony
reveals that Sweeting appeared at the Fair facility
once or twice a week to collect employees' timecards
and to distribute paychecks to the drivers and
helpers. Further, although Sweeting was nominally
responsible for the payment of the drivers and
helpers, Fair, on several occasions, cashed paychecks
for the Sweeting employees after they were dishon-
ored by the bank for insufficient funds.
All the foregoing amply demonstrates that, not-
withstanding the intended relationship manifested by
the written agreement between Fair and Sweeting, in
practice, Fair's management assumed in its own
interest substantial employer functions and shared or
codetermined with Sweeting matters governing the
essential terms and conditions of employment of the
employees herein. For these reasons we conclude
that Fair and Sweeting are the joint employers of
these employees and accordingly that their bargain-
ing representative did not violate Section 8(b)(4)(B)
of the Act by picketing the Fair facility. A fortiori, the
ambulatory picketing which followed likewise did
not run afoul of the Act.
ORDER
497
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
original charge was filed by Fair Mercantile Company,
Inc., herein referred to as Fair, on November 14, 1973, and
was served on the Respondent, Teamsters Local Union
No. 688, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein referred to as Local 688, by registered mail
on or about the same date. A complaint and notice of
hearing was issued on December 6, 1973. The complaint
charged that the Respondent had engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the National Labor Relations Act, as amended,
herein referred to as the Act.
The Respondent filed a timely answer denying that it
had engaged in the unfair labor practices alleged.
The case came on for trial on January 7, 1974, at St.
Louis, Missouri. Each party was afforded a full opportuni-
ty to be heard, to call, examine, and cross-examine
witnesses , to argue orally on the record, to submit
proposed findings of fact and conclusions , and to file
briefs. All briefs have been carefully considered.
FINDINGS OF FACT,1 CONCLUSIONS, AND REASONS
THEREFOR
I. THE BUSINESS OF FAIR MERCANTILE COMPANY,
INC., AND SWEETING EXPRESS LINES, INC.
Fair is, and has been at all times material herein, a
corporation duly organized under, and existing by virtue
of, the laws of the State of Missouri.
At all times material herein, Fair has maintained its
principal office and place of business at 5257 Shaw Avenue
in the City of St. Louis and State of Missouri, herein called
Fair's store. Fair is, and has been at all times material
herein, engaged in the retail sale and distribution of
furniture, appliances, carpeting, and other related prod-
ucts.
During the year ending December 31, 1972, which period
is representative of its operations during all times material
hereto, Fair, in the course and conduct of its retail business
operations, derived gross revenues in excess of $500,000,
and purchased and caused to be transported and delivered
at its warehouse and store furniture, appliances, carpeting,
and other goods and materials valued in excess of $50,000,
The facts found herein are based on the record as a whole and on the
observation of the witnesses
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of which goods and materials valued in excess of $50,000
were transported and delivered to its warehouse and store
in St . Louis, Missouri, directly from points located outside
the State of Missouri.
At all times material herein , Sweeting Express Lines,
Inc., herein called Sweeting , has been engaged in business
as an intrastate trucking establishment and has had a
contract for the delivery of Fair's merchandise in the
performance of which Sweeting receives in excess of
$50,000 from Fair.
Fair and Sweeting, each is now and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and a
person engaged in commerce or in an industry affecting
commerce within the meaning of Section 8(b)(4XB) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Local 688 is , and has been at all times
material herein , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Pertinent Facts
The parties stipulated as follows:
1. Fair Mercantile Company, Inc. operates two
facilities in the St . Louis, Missouri, area, consisting of a
storage warehouse located at 5256 Northrup and a
store and delivery warehouse located at 5257 Shaw
Avenue , St. Louis, Missouri, both facilities located
approximately one-eighth of a mile apart.
2. Fair Mercantile Company, Inc. . . . for many
years prior to around March 1, 1970, employed its own
drivers and helpers to perform its delivery service.
Since around 1951 until the present time drivers and
helpers who deliver Fair's merchandise were represent-
ed by various local unions of the International
Brotherhood of Teamsters including Teamsters Local
Union No. 688 who represented drivers and helpers
who deliver Fair's merchandise from around July 1,
1965, until the present . Around March 1, 1970, Fair by
written agreement contracted its delivery services to
Sweeting Express Lines, Inc... .
3. The trucks utilized in the delivery services
performed by Sweeting have at all times been owned
and maintained by Fair. The trucks have at all times
material herein carried Fair's name and not Sweeting's
on them.
4. Fair's trucks are situated at Fair's store and
delivery warehouse facility on the west side of the
building which houses Fair's delivery warehouse, and
some of Fair's trucks are situated at Fair 's storage
warehouse. Fair 's trucks are interchanged back and
forth between the facilities . Fair's trucks at the store
and delivery warehouse facility are usually located near
the loading doors.
5. Picketing has been conducted since November 6,
1973, in front of the loading doors at Fair's store and
delivery warehouse facility. . . . Aubrey Miller is a
warehouse supervisor employed by Fair . Since around
March 1970 the drivers and helpers employed by
Sweeting and performing delivery service for Fair have
had their wages paid by Sweeting.
The March 1, 1970, agreement between Fair and
Sweeting provided that both parties would recognize the
existing labor agreement between Fair and Local 688 and
"will comply with its provisions with particular reference to
Article VI , Section 4, pertaining to Transfers of Work."
Article VI provided that Fair was not prevented "from
selling, leasing, contracting or making any other transfer of
all or part of the bargaining work to any other firm or
corporation" subject to certain protective features for
Fair's employees . Sweeting took over the Local 688
agreement and thereafter upon its expiration on October
31, 1970, negotiated a new agreement which by its terms
expired November 1, 1973. Fair was not a party to this
contract nor was it asked to participate in negotiations by
Loca1688.
Under the agreement between Sweeting and Fair, it was
agreed that Sweeting should operate as an independent
contractor with full control over the direction of employ-
ees. Sweeting agreed to furnish insurance policies protect-
ing the legal liability of Sweeting under any Workmen's
Compensation Act and the legal liability of Sweeting for
injuries to or death sustained by persons other than
Sweeting's employees . Fair agreed that it "will own,
maintain , and garage trucks used in this operation , and will
provide necessary personal liability and property damage
insurance coverage on trucks." Pursuant to this agreement,
Sweeting used Fair's trucks on which the name of Fair
appeared and Fair provided gas, oil , maintenance, and
insurance . Fair paid Sweeting "by the piece" for the
delivery of its merchandise. Sweeting used on the average
two and a half trucks a day for delivery purposes and
employed between four and six truckdrivers and helpers,
herein sometimes referred to as delivery employees. There
were six "regular men" on the seniority roster which was
maintained only for delivery employees who delivered
Fair's merchandise. Fair assumed "the responsibility of
damages and losses on merchandise." In addition to the
delivery work performed for Fair , Sweeting also hauled
flowers and carpets . There was no evidence that Fair
merchandise employees were engaged in this work; nor
were Fair's trucks used for this purpose.
After Sweeting assumed the contract in March 1970, it
paid the delivery employees wages and otherwise con-
formed to the provisions of the contract which continued
during the term of the subsequent contract . The delivery
employees did not enjoy the same benefits which were
afforded Fair store employees who were governed by a
contract with the Retail Workers . The delivery employees
were not carried on Fair's payroll , but utilized Fair's
timecard rack and timeclock.
Aubrey A. Miller, warehouse shipping foreman superin-
tendent , had the responsibility "to see that the delivery
orders [were] brought in to the loading area for the next
day delivery ." Miller testified , "I take all of the orders that
are scheduled for the next day and I figure out how many
loads, truckloads, are needed to deliver that much furniture
for the following day." In the exercise of this function,
TEAMSTERS LOCAL UNION NO. 688
Miller sorted the tickets (orders), assigning them to zones
for delivery.2 The tickets were arranged in a manner so that
the routing would accommodate the demands of the
customer as to the time of delivery and the area to be
serviced by the driver.3 Miller tried to equalize the loads.
Thereafter the tickets were given to a checker who
prepared a log sheet or trip sheet on which appeared the
ticket numbers and the names and addresses of the persons
to whom merchandise was to be delivered. A copy of the
log was retained in the office and a copy was given to the
driver. The driver signed the log.
The driver and helper loaded the trucks from merchan-
dise which was moved to the loading zone or dock the
previous day by Fair employees. About 1-1/2 hours was
consumed in loading the trucks. Merchandise was checked
by the checker.
Miller informed the delivery employees if there was a
change in zones which they were to service. Occasionally
(about once a week) he discussed working problems and
complaints with these employees? Miller also discussed
with the drivers facts related to damaged merchandise
delivered. Customers' complaints were taken up with
Sweeting. When Sweeting's checks were dishonored at the
bank, Fair "as a favor" cashed the delivery employees'
checks for them.
Miller issued gasoline purchase tickets to drivers when
they were ready to commence their day's deliveries. If the
drivers were required to purchase gasoline or other services
for the trucks while on route, they were reimbursed by
Fair. In case of a truck breakdown, drivers contacted
Miller who gave them instructions as to how the matter
should be handled.
After Miller had routed the deliveries for the next day
and had ascertained the number of trucks which would be
needed for delivery, he informed the delivery employees if
any of them were not needed by marking the timecards of
those holding the lowest seniority, "Not to report the
following day." If Miller needed additional employees, he
phoned the laid-off employees on the seniority list, and if
he needed more employees or these were not available he
phoned the union hiring hall. New employees were
furnished blank timecards on which they entered their
names and addresses , and W-2 forms.
In case of illness or absence, delivery employees notified
Miller who arranged for replacements.5 If the absence was
for more than 1 day Miller told the employee to notify
Sweeting. Miller had no authority to excuse employee
2 The zones were , north , south county, north county , and central.
3 A driver generally serviced the same area or zone . If a driver changed
the routing, he informed Miller of the change so that he might advise an
inquiring customer.
* Miller cited an example:
Well, one of the men , maybe a regular driver would be sick and a
replacement man would come out and so he would take the place of the
man who was off and that would just be sort of a routine thing and he
drives this truck this day because this fellow is off sick and the other
crews are there together like, they always are, so maybe the helper on
that particular truck might not like this fellow that he had come from
the hall or couldn 't get along with him so he would say could we trade
off with so and so and so and so and switch the men around . . . . Well,
they would ask Massaro about it , he was the steward , as to what to do,
he would then come to me and discuss it. Usually they would go to him
first being as he was the steward and so I would say, "Tom , what do
you think, I mean, you guys can work it out , do you want to go there
499
absence. On one occasion, Sweeting complained to Fair
that an employee, Bruerer, was making more overtime than
the other employees. Thereafter, Miller saw Bruerer's truck
parked near a tavern. Miller was instructed by Albert
Paull, president of Fair, to "see how long the truck stayed
there." A report was made to Sweeting. On another
occasion, Paull reported to Sweeting that driver Temme
was driving without a chauffeur's license. Temme was
discharged.
Miller was never told by Fair's management not to
perform the above functions for Sweeting, although he was
told that Sweeting "should be taking care of these things."
Miller said he performed these functions as a convenience
to himself and as a favor to Sweeting.6 He had experienced
difficulty locating Sweeting.
Sweeting collected the timecards and issued wage
payments to the delivery employees by stapling their
payroll checks to their timecards. "[S]ometimes once or
twice a week," Sweeting came in to the Fair store for such
purposes.
After the contract expired between Local 688 and
Sweeting in November 1973, Local 688 placed a picket line
at the Fair store premises. The picket signs bore the legend
"Employees of Sweeting Express Lines, Inc., working at
this location on Strike-Teamsters Local Union 688
affiliated with I.B. of T.C.W. & H of A."
During the period of negotiations, Local 688 proposed a
settlement of the dispute which was not acceptable to
Sweeting. Sweeting brought to Fair's attention that it could
not settle the contract until it knew what rates Fair would
pay. Fair did not discuss rates with Sweeting or the terms
of Local 688's proposed contract.
After the picket line appeared, Fair asked Sweeting "if he
could take the trucks out." Sweeting said that "he couldn't
take them out." Fair then hired Fritz, Bailey, and Wills on
November 12, 1973, to make its deliveries. They agreed to
deliver Fair's merchandise by charging "so much per
piece." For a few weeks Fritz, Bailey, and Wills furnished
the trucks, two of which were rentals . Thereafter, Fair
supplied its own trucks on the same basis as it had supplied
them to Sweeting. Local 688 followed Fair's trucks and
picketed at the point of delivery.?
B. Conclusions and Reasons Therefor
While the General Counsel and the Charging Party filed
excellent and well-considered briefs, neither referred to or
and this guy go there, I don't care what you do," two men on a truck,
you know. Then if they weren 't happy there was nothing I could do, I
would just tell them they would have to call Sweeting and straighten it
out.
5 Miller testified that his only connection with this situation was "to hire
a replacement for that man , how to get a man to take his place for the day."
8 Miller testified : ". . . I believe I do them more for myself that I do for
Mr. Sweeting , I do it as a favor, he asks me to do it in his behalf."
7 The Respondent admitted the following allegations in the complaint:
Commencing on or about November 12, 1973 and continuing until
around December 5, 1973, Respondent on numerous occasions
followed and subsequently picketed Fair's subcontractors Bailey, Wills
and Fritz, with picket signs reading in substance the same as those
hereinabove described in subparagraph A, [as above quoted] as the
subcontractors attempted to deliver Fair's merchandise to the homes of
Fair's customers.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distinguished the case of Highway Truck Drivers and
Helpers, Local 107, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Sterling
Wire Products Company), 137 NLRB 1330, relied upon by
the Respondent, from the case which is before me. I have
been unable to distinguish the case. Substantially the same
factors which persuaded the Board to dismiss the com-
plaint in the Highway Truck Drivers and Helpers, Local 107
case, supra, are present in the instant case. Thus, I am
bound to find, as did the Board in the Highway Truck
Drivers and Helpers, Local 107 case, supra, that Sweeting
was not the "sole primary employer involved in the
dispute" and that the action of Local 688 "in picketing
[Fair] was primary activity in support of an effort to obtain
8 Sec . 2 of the Act provides:
The term "employer" includes any person acting as an agent of an
employer, directly or indirectly.
Fair's retention of control and its exercise of control over the delivery
employees brought it within the definition of an "employer."
9 In the event no exceptions are filed as provided by Sec 102 .46 of the
reemployment for the drivers who were employees of
[Fair ]." 8 Having so found , it follows that the ambulatory
picketing by Local 688 was also lawful . Brewery Workers
Union No. 8, International Union of United Brewery, Flour,
Cereal, Soft Drink & Distillery Workers of America,
AFL-CIO (Bert P. Williams, Inc.), 148 NLRB 728. Bailey,
Wills, and Fritz became allies and as nonneutrals rendered
themselves subject to Local 688 's picketing.
Accordingly, it is recommended that the Board issue the
following:
ORDERS
It is hereby ordered that the complaint be, and it hereby
is, dismissed in its entirety.
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.