Teamsters Local Union No. 559, Etc.

National Labor Relations Board - Board Decisions

Sep 12, 1962

138 N.L.R.B. 532 (N.L.R.B. 1962)

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local Union No. 559, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers 'of
America and Connecticut Sand and Stone Corporation. Case
No. 1-CC-308. September 12, 1962
DECISION AND ORDER
On June 11, 1962, Trial Examiner Max M. Goldman issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the General Counsel filed exceptions to the
Intermediate Report, together with a supporting brief, relating only
to the Trial Examiner's Recommended Order and the notice attached
hereto. No exceptions were filed by the Respondent.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman McCulloch and Members Rodgers and Leedom].
In the absence of exceptions by the Respondent, the Board hereby
adopts the Trial Examiner's findings and conclusions pro forma. The
General Counsel filed exceptions limited to the provisions of the Rec-
ommended Order and notice. We find merit in the exceptions, and
the Recommended Order and notice are modified as follows.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its own with the following modifications :
Paragraph 1 thereof to be supplemented by changing the period to
a comma and by adding the words : "or where an object is to force
or require the Company to cease doing business with independent
`haulers Miller and Wetherell or any other persons."
Notice attached to the Intermediate Report , marked "Appendix" to
be supplemented by the addition of the following paragraph :
WE WILL NOT threaten to shut down Connecticut Sand and Stone
Corporation 's Avon plant where an object thereof is to force or
require Connecticut Sand and Stone Corporation to cease doing
business with independent haulers Millers and Wetherell or any
other person.
The penultimate sentence in the same notice to be changed to read
as follows : "This notice must remain posted for 60 consecutive days
from the date of posting ...." instead of stating "60 days from the
date hereof."
138 NLRB No. 68
TEAMSTERS LOCAL UNION NO. 559, ETC.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
533
STATEMENT OF THE CASE
This proceeding upon a complaint issued February 13, 1962, against Teamsters
Local Union No. 559, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein also called the Union or the
Respondent, involves Section 8 (a) (4) (ii) (A) and ( B) allegations and was initiated
by a charge filed December 12, 1962, and an amended charge filed January 23, 1961,
by Connecticut Sand and Stone Corporation, herein called the Company or the
Charging Party. The hearing was conducted on March 26, 1962, at Hartford, Con-
necticut . The General Counsel and the Respondent filed briefs.
Upon the entire record in the case and his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Connecticut Sand and Stone Corporation, a Connecticut corporation with its
principal office and place of business at Avon, Connecticut, is engaged in the pro-
duction, processing, sale, and distribution of sand, gravel, stone, ready-mix concrete,
and related products. The Company's gross annual sales are valued at about
$1,000,000. These sales are made to, among others, the building construction in-
dustry, highway contractors, the State of Connecticut, and various municipalities.
The Company purchases annually supplies such as bulk cement, lubricating oils,
grease, machinery, and equipment valued in excess of $100,000, which supplies and
equipment are shipped directly to its Avon plant from points outside the State of
Connecticut. Independent haulers Miller and Wetherell perform some delivery work
for the Company. It is found that the Company is engaged in commerce, and that
as Miller and Wetherell at as haulers of building materials on behalf of the Company
destined for use in the building and construction industry they are engaged in an
industry affecting commerce within the meaning of the Act.'
II. THE LABOR ORGANIZATION
Teamsters Local Union No. 559, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza-
tion within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The events
As noted above, the Company at its Avon facilities is engaged in the processing
and distribution of building materials such as sand, stone, gravel, and ready-mix
concrete to the building construction industry and to the heavy construction and
highway industry. Some of the Company's purchasers pick up their own materials
and others have the supplies delivered to them by the Company. Essentially it is
the Company's delivery function and by whom that function is to be performed
that is the source of the dispute which gave rise to this proceeding.
Some of the deliveries of sand, stone, and gravel are made by dumping the loads
at construction sites including batch plants owned by others which are located along-
side highway construction projects. Some sand is dumped at sand stockpiles for later
use in road maintenance work. Dump trucks deliver their loads by dumping the
contents of their trucks and do not level the load when they dump.2 In its ready-mix
business which accounts for between 10 and 20 percent of its $1,000,000 gross sales,
the Company accomplishes delivery in mixer trucks and discharges the load at con-
struction sites into prepared building forms, buggies, and crane haulers under the
direction of individuals such as carpenters or masons employed on the jobsite. It
does not appear that the Company employs any masons or carpenters.
' See Sheet Metal Workers International Association, Local Union No. 299, AFL-CIO,.
et at ( S M. Kisner et at. d/b/a Kisner and Sons ), 131 NLRB 1196.
2 The Company has at one time made a small proportion of its highway construction,
work deliveries by dropping stone directly Into the roadbed Itself This has not occurred
In the past year, and was not being done when the Company entered into a contract with
the Union on October 13, 1960.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 13, 1960, the Company and the Union entered into a collective-
bargaining agreement which by its terms was to remain in effect until April 30, 1962,
subject to a certain automatic renewal provision. Although the contract recites in
substance that the Company recognizes the Union as the bargaining agent of the
Company 's employees engaged in the transportation of building materials , it also
recites that the contract applies to all employees "on all jobsites and projects" engaged
in building construction , and all highway and heavy construction work in a given
geographic area. It does not appear, however, that the Company actually performs
construction work or that the Company employs anyone but truckdrivers for delivery
work and persons, including drivers, who perform work at its yards and its gravel
and sand mining operations.
For all practical purposes , so far as this controversy is concerned , the contract
in operation concerns itself only with all the Company's employees who are drivers,
both within its Avon facilities and over the road. At the time the parties entered
into this contract in October 1960 , an oral understanding was also reached to the
effect that the independent haulers who had been performing delivery services for the
Company , some of whom drive their own trucks and some of whom hire others as
drivers, would by April 1961 come under the provisions of the agreement. The
contract contains the following provision which is the central issue in a Section 8(e)
controversy:
ARTICLE XIV
Subcontracting
1. Any subcontractor on the site shall be covered by conditions of this
Agreement .3
In April 1961, when the winter seasonal decline had come to an end, Peter Rossano,
the Union's business agent, pointed out to John Toffolon, vice president of the
Company, that all the union drivers had been in layoff status during the winter
months while the Company utilized the services of independent haulers, including
Wetherell, who were not members of or under contract with the Union, to perform
certain delivery work. Rossano sought to have this practice discontinued, and have
the independent haulers come under the terms of the contract in accordance with
the oral understanding that had been reached in October. Toffolon stated that
there had not been sufficient work to call the drivers in during the winter, and
further that although he did not feel that he had any control over the haulers as they
were independent contractors, he would undertake to talk to these haulers to see
whether they would join the Union.
During July and August, further coversations were held between Rossano and
Toffolon in which Rossano complained about the independent haulers working on
occasions, while union drivers were not working. Rossano insisted upon enforce-
ment of the agreement, taking the position that haulers sign a contract with the
Union or that the Company get the haulers off the job. Rossano told Toffolon that
if the Company failed to abide by the agreement, he, Rossano, would tie up the
Company by establishing a picket line. Toffolon again undertook to talk to the
haulers, and thereafter reported to Rossano that he could not convince the haulers
to join or contract with the Union. On occasions in July and August, Rossano also
raised objections with the Company's superintendent concerning the Company's use
of independent haulers Miller and Wetherell, as they were not members of the
Union. On one of these occasions, Rossano declared that if Miller did not join
the Union by a certain time, he would close the plant down by calling a strike and
by picketing. Rossano suggested as there was an issue between the parties as to
the legality of the contract, that under the terms of the arbitration provisions of
the contract the matter be resolved by the State of Connecticut Arbitration Board
and Toffolon agreed. The parties appeared before the State Board and when that
3This article further provides:
2. In the event that a subcontractor does not make payments of wages or welfare
,contributions in accordance with the terms of this Agreement, then the Union must
give the Connecticut Sand & Stone Corporation notice thereof within two (2) weeks
from the time the wages or welfare contributions were due In the event there is a
,dispute in regard to the matter, then the matter is to be taken up as provided in
Article XII, Arbitration. In the event the Union fails to notify the general con-
tractor as herein provided, then it shall be considered to have waived its right to any
work stoppage as provided herein because of failure to pay the particular wages or
welfare contributions involved in any individual dispute
TEAMSTERS LOCAL UNION NO. 559, ETC. 535
body indicated that it would not pass upon the legality of the contract clause, the'
Company withdrew from that proceeding.
About the time of the arbitration proceeding, Miller and Wetherell, who had
hauled sand and stone for the Company in dump trucks, withdrew from further-
service with the Company. Independent haulers other than Miller and Wetherell,
who had serviced the Company for several years and concerning whom no question
was raised by Rossano , continued their relationship with the Company.
B. The conclusions
The General Counsel urges that the Respondent (1) violated Section.
8(b) (4) (ii) (A) by threatening to shut down and picket the Avon plant with an
object of forcing the Company to maintain and give effect to an agreement prohibited
by Section 8(e), and (2) violated Section 8(b)(4)(ii)(B) by-threatening to shut
down and picket the Avon plant with an object of forcing the Company to cease
doing business with independent haulers Miller and Wetherell.
The record is clear that in July and August 1961, the Union in seeking to enforce
its contract with the Company took the position with the Company under threat-
of a work stoppage through picketing that the Company either persuade independent-
contractors Miller and Wetherell to join the Union or to sign a contract with the
Union, or that the Company cease doing business with them. The Union explains
that it executed the contract and engaged in this conduct to enforce the contract
in order to preserve job opportunities for its members and to maintain the working
conditions standards of its members by requiring that subcontractors, who them-
selves may be employers, at the minimum adhere to standards established by the
contract with the Company.
The Respondent is not shielded by the construction industry proviso of Section
8(e).4 As noted above, although the contract speaks of employees at jobsites in
the construction industry, the Company does not actually engage in construction
work and the contract merely relates to the Company's drivers both within its
Avon plant facilities and over the road. Further, the Company's dump trucks
deliver building material such as sand and gravel at various construction jobsites
by dumping the loads which they had picked up at the Avon plant. Miller and
Wetherell, the independent haulers involved, had performed work such as this. It
also appears that the Company's mixer trucks transport ready-mix concrete from
the plant to construction sites where the product is discharged as directed by persons
employed by others at the jobsite, by pouring directly into prepared building forms,
or into other conveyances used on construction jobs In the Trial Examiner's
judgment, the placement of the building materials by a supplier at the jobsite by
dumping or by pouring, including the instance of pouring ready-mixed concrete
(which by its very nature cannot be poured on the ground as in the instance of dry
materials ) directly into building forms, although the product may thus become part
of the building structure involved with little or no further work, is merely the final
act in the Company's delivery function and does not come within the construction
industry exemption .5
As the clause involved allows the subcontracting of work ordinarily performed
by employees covered by the contract and merely delimits the persons with whom
the Company may subcontract, namely persons who are willing to join the Union
or to adopt as their own the contract between the Company and the Union, the
contract contravenes the proscription of Section 8(e) 6 Under this section of the
* The proviso referred to reads:
Provided, That nothing in this subsection (e) shall apply to an agreement between
a labor organization and an employer in the construction industry relating to the
contracting or subcontracting of work to be done at the site of the construction,
alteration, painting, or repair of a building, structure, or other work:. .
See the legislative history concerning the construction industry exemption set forth in
Ohio Valley Carpenters District Council, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, at al (Cardinal Industries, Inc ), 136 NLRB 977
6Calorator Manufacturing Corp., 129 NLRB 704; District No 9, International Associa-
tion of Machinists, AFL-CIO (Greater St Louis Automotive Trimmers and Upholsterers
Association, Inc ), 134 NLRP 1354 Cf. Local t4, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, et at v Oliver, at al,
358 U.S 283 and 362 U.S. 605, where the Court pointed out that no contention had been
made that the subject matter of the contract-permitting but regulating the circum-
stances of subcontracting-exceeded the outside limits of collective bargaining set by
the Act
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, the contract clause was unenforceable and void when the contract was executed
on October 13, 1960. As the charge in this proceeding was not filed until December
12, 1961, the act of entering into this contract clause in October 1960 as an unfair
labor practice is beyond the remedial reach of-the Board under the limitations of
Section 10(b) of the Act. However, as the Union sought despite the Company's
refusal to have the Company reaffirm the void subcontracting provision by threaten-
ing a work stoppage during July and August 1961, within the 6 months' limitation
period, it is found in accord with Board precedent that this conduct constituted
entering into a contract and the Union thereby violated Section 8(b) (4) (ii) (A) of
the Act as alleged.?
As a further object of the threatened work stoppage made to the Company in
July and August 1961 was to get the Company to threaten Miller and Wetherell
with loss of the Company's business unless Miller and Wetherell joined the Union
or adopted as their own the contract of October 13, 1961, between the Company
and the Union, it is found that the Union thereby violated Section 8(b)(4)(ii)(B)
of the Act as alleged.8
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the persons described in section 1, above, involve
an industry affecting commerce, and have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The persons named in section I are engaged in commerce or in an industry
affecting commerce within the meaning of the Act.
2. The Respondent is a labor organization within the meaning of the Act.
3. By threatening to shut down the Company's Avon plant by engaging in picket-
ing with an object of forcing the Company (1) to enter into an agreement proscribed
by Section 8(e), and (2) to force or require the Company to cease doing business
with independent haulers Miller and Wetherell, the Respondent violated Section
8(b)(4)(ii)(A) and (B) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
.Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8(b) (4) (ii) (A) and (B) of the
Act, it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act. As the
admitted purpose of the subcontracting provision and the Union's efforts to reaffirm
and enforce this provision is to regulate the circumstances of subcontracting, it will
be recommended that the Union cease and desist from prohibited conduct where an
object is to require the Company to enter into or enforce any agreement as to Miller
and Wetherell or any other independent haulers which is prohibited under Section
8(e) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, the Trial Examiner recommends in order to effectuate
the policies of the Act that the Respondent, Teamsters Local Union No. 559, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Hartford, Connecticut, its officers, representatives, agents, successors,
and assigns, shall:
7 See Los Angeles Mailers Union No 9, LT U (Hillbro Newspaper Printing Company,
Division of Hearst Publishing Company, Inc), 135 NLRB 1132.
S See Highway Truck, Drivers and Helpers, Local 107, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (E. H.
Gallagher & Sons), 131 NLRB 925, and Washington-Oregon Shingle Weavers' District
Council, etc . (John B. Martin et at., d/b/a Sound Shingle Co ), 101 NLRB 1159
TEAMSTERS LOCAL UNION NO. 559, ETC. 537
1. Cease and desist from threatening , coercing , or restraining the Company, where
an object thereof is to force or require the Company to enter into or enforce any
agreement as to Miller and Wetherell or any other independent haulers which is
prohibited by Section 8(e) of the Act.
2. Take the following affirmative action:
(a) Post in conspicuous places at its business offices , meeting halls, and all places
where notices to members are customarily posted, copies of the notice attached
hereto marked "Appendix." 9 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being duly signed by an authorized repre-
sentative of the Respondent, be posted by the Respondent immediately upon receipt
thereof and be maintained for a period of 60 consecutive days thereafter. Reason-
able steps shall be taken by the Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Furnish the said Regional Director copies of said notice for posting at the
premises of Connecticut Sand and Stone Corporation, or any other persons named
in the notice attached hereto as an Appendix at all locations where notices to in-
dividuals employed by them are customarily posted, if said companies are willing
to do so.
(c) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps the Respondent
hastaken to comply herewith.'°
9 In the event that this Recommended Order be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
11 In the event that this Intermediate Report and Recommended Order be adopted by
the Board , this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps the Respondent has taken
to comply herewith."
APPENDIX
NOTICE To ALL MEMBERS OF LOCAL UNION No. 559, AFFILIATED WITH INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA AND TO ALL EMPLOYEES AND INDEPENDENT HAULERS
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the Labor Management Rela-
tions Act, you are hereby notified that:
WE WILL NOT threaten to shut down Connecticut Sand and Stone Corpora-
tion's Avon plant in order to enforce our agreement not to subcontract drivers
work except to union drivers and under union conditions. We have no ob-
jection to independent haulers such as Miller ad Wetherell working for the
Company.
TEAMSTERS LOCAL UNION No. 559 A/W INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Anyone may communicate directly with the Board's Regional Office, 24 School
Street, Boston 8 , Massachusetts, Telephone Number, Lafayette 3-8100, if they have
any question concerning this notice or compliance with its provisions.