Truck Drivers, Chauffeurs and Helpers Local 100

National Labor Relations Board - Board Decisions

Nov 20, 1974

214 N.L.R.B. 1094 (N.L.R.B. 1974)

1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truck Drivers, Chauffeurs and Helpers Local Union
No. 100, an affiliate of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Moraine Materials Compa-
ny. Case 9-CB-2419
November 20, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 15, 1974, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs. The Respondent filed a brief in response to
these exceptions to the Decision of the Administra-
tive Law Judge.
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 only to
the extent consistent herewith.
The complaint, in substance, alleges that: (1) Re-
spondent Union's ban of work assignments to the
Employer's drivers other than driving and cleaning
trucks constitutes a unilateral change of its collec-
tive-bargaining agreement with the Employer in vio-
lation of Section 8(b)(3); and (2) Respondent Union
threatened the Employer's drivers with possible fines
for accepting work assignments other than truckdriv-
ing and cleaning their trucks in violation of Section
8(b)(1)(A).
We find, contrary to the Administrative Law
Judge, that the record evidence establishes that the
Respondent Union's conduct herein violated Section
8(b)(3) and 8(b)(1)(A).
The record shows that the Employer commenced
operation of a ready-mix concrete plant in August
1970. Soon thereafter the Employer executed three
separate agreements negotiated by a local concrete
producers association with the Respondent Union
covering drivers, yardmen, and garage mechanics, re-
spectively. The Employer subsequently participated
in negotiations of new agreements covering the driv-
ers and yardmen separately for the period June 1,
1971, to May 31, 1974.'
1 A new agreement covering garage mechanics was also subsequently exe-
At the time the Employer began operations, the
5-acre plot on which its plant was situated was most-
ly undeveloped grassland. As a consequence, the
Employer diverted one or more of its truckdrivers
from his regularjob of delivering ready-mix concrete
to construction sites to grading, setting forms, and
pouring concrete in the parking lot and driveway of
the plant site , on almost a daily basis.
During a visit to the plant in January 1972, the
union business agent , Marshall Tucker, discovered
that the truckdrivers were engaged in the above-de-
scribed work on the Employer' s premises. He
stopped the truckdrivers from doing the work and
told them that it was not allowed under the
Respondent's agreement with the Employer. Tucker
likewise informed the Employer's plant manager,
Gary Kline, that the drivers were not to be used for
concrete work on the yard as it was out of their "clas-
sification" as truckdrivers. He also told Kline that
the only work the drivers would be allowed to do
under the agreement was to drive and clean their as-
signed trucks.
A meeting with the Union arranged by the Em-
ployer in February 1973 failed to resolve the continu-
ing disagreement over whether the collective-bar-
gaining agreement did or did not permit the Employ-
er to use drivers to pour concrete at the Employer's
plant site.2 At the conclusion of the meeting, Union
Business Agent Tucker instructed Union Steward
Jackson to notify the drivers not to engage in any
work other than driving and cleaning their trucks
and similar related work. In April 1973, the Employ-
er assigned a driver, Bobby Joe Jasper, to work pour-
ing concrete at the plant site. This action caused the
Respondent to again complain to the Employer
about this practice. Later that same month an in-
traunion charge was filed by Luttrell, a mechanic
with the Employer on layoff status, against Jasper
arising from the performance of his work at the plant
site. A copy of the intraunion charge was sent to Jas-
per by the Respondent and, in an accompanying let-
ter, Respondent notified him that he would be placed
on trial on May 30 at the union hall and that failure
to attend might result in disciplinary action against
him. Under the Respondent's constitution the impo-
sition of a fine is one of the disciplinary actions that
could be involved if Jasper were found guilty. Upon
learning of the intraunion charges filed against Jas-
per, the Employer filed the instant unfair labor prac-
tice charges.
On May 30, 1973, Jasper appeared at the union
cuted That agreement does not figure in the resolution of this case
2 The record is not clear as to the actions taken by the Employer and
Respondent between January 1972, when Tucker discovered the situation,
and February 1973, when the Employer arranged a meeting with the Re-
spondent on this subject
214 NLRB No. 151
TRUCK DRIVERS , CHAUFFEURS AND HELPERS LOCAL 100
hall. No trial took place, however, because Union
Business Agent Tucker took the initiative to dismiss
the internal proceeding after Luttrell agreed to drop
the charges against Jasper and, in turn, Jasper agreed
not to file countercharges against Luttrell. Tucker
testified that he dismissed the charges against Jasper
because Jasper and Luttrell worked under different
agreements and it was impossible for Jasper as a
driver to take any work away from Luttrell as a me-
chanic.
Thereafter, the Employer again attempted to as-
sign drivers to perform concrete work at the plant
site . The drivers declined the assignment on the
ground that they risked fines from the Respondent if
they performed the work. In subsequent discussions,
Respondent reaffirmed its position to the Employer
that the drivers could not be required to perform
work other than driving and cleaning their trucks.
The General Counsel and the Employer contend
that the collective-bargaining agreement with the
drivers gives the Employer the right to use its drivers
to perform the concrete work at its plant site. Re-
spondent disagrees and contends that paving work at
the plant site is covered by the yardman contract.3
As found by the Administrative Law Judge it is
clear and undisputed that Respondent has prohibited
the Employer's drivers from accepting any work as-
signments other than driving and related work and
has, under its ban, stopped the Employer's drivers
from engaging in the work of paving the Employer's
parking lot.
We find no support in the literal language of the
drivers' agreement for the Respondent Union's posi-
tion that drivers are not permitted to do any work
other than driving or cleaning trucks. Nor do we find
evidence in the record to show that such a restriction
was expressly agreed to in prior negotiations or in
negotiations leading to the current agreement. Con-
sequently, we must look to the agreement itself in
order to resolve the allegations of the complaint.
We agree with the Administrative Law Judge that
the question of whether Respondent Union's con-
duct constituted a unilateral alteration of the collec-
tive-bargaining agreement turns on the interpretation
of the following provision of this agreement:
No drivers or helpers shall receive less than the
minimum wage provided for them herein re-
3 The record shows that the two yardmen employed by the Employer
have not performed any of the paving work , but that they fed the materials
into the mixer at the plant and loaded the trucks The literal language of the
yardman contract does not specifically cover the work of paving the
Employer 's parking lot Even assuming the yardman contract could be con-
strued to cover all or part of the work involved in paving the Employer's
parking lot , we are not satisfied that this circumstance would require a result
different from the one reached herein
1095
gardless of the type of work which they are actu-
ally required to perform. Any work an employee
is required to do, other than his regularly assigned
duties; shall be within reason. [Emphasis sup-
plied.]
The Administrative Law Judge interpreted the
term "within reason" in the provision to mean that
drivers may not under the agreement be assigned any
work wholly unrelated to their duties as truckdrivers
and that the pouring of concrete is not, under the
circumstances, work which is related to the truck-
driving function and classification. In arriving at his
interpretation the Administrative Law Judge relied
upon record evidence which he found shows that the
tradition, custom, and practice within the ready-
mixed concrete industry is that truckdrivers may not
be used by their employers for any work other than
driving trucks and related work such as cleaning
trucks.
We are unable to accept the unduly restrictive in-
terpretation of the disputed provision by the Admin-
istrative Law Judge. Under his interpretation any
work performed by the drivers above and beyond the
driving and cleaning of their vehicles would be work
wholly unrelated to their duties as truckdrivers. The
effect of this interpretation is to read "within reason"
out of the provision. If the parties had intended to so
limit assignments to the drivers, there would have
been no need to include "within reason" in the provi-
sion, because obviously driving and cleaning func-
tions fall within the category of "regular assigned du-
ties." Moreover, we find, contrary to the Administra-
tive Law Judge, that neither the testimony of Union
Agent Tucker nor the record as a whole provides a
sufficient basis for finding that the work assigned by
the Employer herein conflicts with custom and prac-
tice in the ready-mixed concrete industry.
The literal language of the disputed provision pro-
vides that drivers shall receive no less than the driv-
ers' minimum wage regardless of the type of work
they are actually required to perform. It further pro-
vides that any work an employee is required to do,
other than his regularly assigned duties, shall be
within reason. It is clear from the literal language of
the provision that the parties contemplated and pro-
vided for circumstances in which truckdrivers may
be assigned to perform duties other than driving and
cleaning their trucks. Otherwise, there would have
been no need to provide for assurances that the driv-
ers would receive drivers' wages for jobs outside the
drivers' wage classification. Similarly, as noted earli-
er, there would have been no need to include the
term "within reason" in the provision if it were in-
tended that the only work the drivers were to per-
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form was driving and cleaning their trucks. Thus, the
only reasonable interpretation of the provision on its
face is that drivers may be called upon to work at
jobs other than driving and cleaning their trucks.
This interpretation is further bolstered by article 31(x)
of the agreement describing particular circumstances
in which the drivers are to be assigned to "any other
work."
In view of the above, and the absence of record
evidence to establish that the work assignments by
the Employer herein were not "within reason," we
find that Respondent Union's ban of work assign-
ments to the Employer's truckdrivers other than driv-
ing and cleaning their trucks constitutes a unilateral
alteration of its collective-bargaining agreement with
the Employer in violation of Section 8(b)(3) of the
Act.
With respect to the 8(b)(1)(A) allegation, we agree
with the finding by the Administrative Law Judge
that Respondent Union did in fact threaten to fine
the Employer's drivers if they continued to accept
work assignments involving the grading and paving
of the Employer's parking lot. Unlike the Adminis-
trative Law Judge, we have found supra that Respon-
dent Union did not have the right under the collec-
tive-bargaining agreement to ban work assignments
to the Employer's drivers other than driving and
cleaning trucks. Accordingly, we find, contrary to the
Administrative Law Judge, that the Respondent
Union's action also constituted restraint and coer-
cion not sanctioned by the proviso to Section
8(b)(1)(A) because the charges against Jaspar and the
ban on work assignments by Employer's drivers did
not stem from violations of a lawful union rule deal-
ing purely with internal union matters but, to the
contrary, sought to enforce conduct found violative
of Section 8(d) and 8(b)(3) of the Act.4
Having found that the Respondent has engaged in
unfair labor practices in violation of the Act, we shall
issue an Order designed to effectuate the policies of
the Act.
drivers of assignments other than driving and clean-
ing trucks without first affording the Employer a
timely opportunity to bargain within the meaning of
Section 8(d) of the Act.
(b) Restraining or coercing employees in the exer-
cise of their rights guaranteed by Section 7 of the Act
by threatening or assessing fines against or otherwise
disciplining members for engaging in work assign-
ments other than driving and cleaning trucks.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the Re-
gional Director for Region 9, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Furnish said Regional Director for Region 9
signed copies of the aforesaid notice for posting by
the Employer, if the Employer is willing, at places
where it customarily posts notices to its employees.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
Communications Workers of America, AFL-CIO, Local 1170 (Rochester
Telephone Corporation), 194 NLRB 872 (1972), Local 12419, International
Union of District 50, United Mine Workers of America (National Grinding
Wheel Company, Inc), 176 NLRB 628 (1969)
5In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the 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 "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Truck Drivers, Chauffeurs and Helpers Local Union
No. 100, an affiliate of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Cincinnati, Ohio, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Instituting, maintaining, or enforcing any ban
or embargo against the acceptance by Employer's
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We have canceled our ban against the accep-
tance by the Employer's drivers of assignment
other than driving trucks, and WE WILL NOT en-
force that ban against the Employer's drivers.
WE WILL NOT institute, maintain, or enforce
any ban or embargo against the Employer's
drivers of assignments other than driving trucks,
TRUCK DRIVERS, CHAUFFEURS AND HELPERS LOCAL 100
without affording the Employer a timely oppor-
tunity to bargain within the meaning of Section
8(d) of the Act.
WE WILL NOT restrain or coerce employees in
the exercise of their rights guaranteed by Section
7 of the Act by threatening to assess fines
against or otherwise discipline members for en-
gaging in work assignments other than driving
and cleaning trucks.
TRUCK DRIVERS, CHAUF-
FEURS AND HELPERS LOCAL
UNION No. 100, AN AFFIL-
IATE OF THE INTERNATION-
AL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH , Administrative Law Judge: Moraine
Materials Company, the Employer and Charging Party,
commenced the operation of a ready-mix concrete plant in
August 1970 on a 5-acre plot of ground in Sharonville,
Ohio, which is part of the city of Cincinnati, Ohio, and
some 12 miles from downtown Cincinnati.
Except for the plant and limited adjacent paved areas
and driveways, most of the 5-acre plot at the time the Com-
pany began to operate was undeveloped grassland which in
inclement weather became unsuitable for parking company
equipment and customer parking.
From the beginning of its operations the Company from
time to time would divert 1 or more of its 16 truckdrivers
from their regular job of delivering ready-mix cement to
construction sites, to the pouring and finishing of concrete
on the largely undeveloped portion of its 5-acre yard. For
such work the Company selected truckdrivers who had ex-
perience in such work.
As soon as the Union became aware of this diversion of
Moraine's truckdrivers to laying cement on Moraine's
yard, it protested to the Company this use of its drivers out
of their "classification" as drivers under its collective-bar-
gaining agreement with Moraine and directed its member-
drivers at the Moraine plant not to accept any work assign-
ments other than truckdriving and the cleaning of their
mobile equipment.
The Company, on the other hand, claims the right to use
its truckdrivers for such cement work on its own premises
under the terms of the collective-bargaining agreement.
The complaint herein was issued on that premise.
The key provision, among other pertinent parts of the
collective-bargaining agreement , bearing on the right of
Moraine to use its truckdrivers for laying cement on its
unpaved yard, reads as follows:
No drivers or helpers shall receive less than the mini-
1097
mum wage rate . . . . Any work an employee is required
to do, other than his regular assigned duties, shall be
within reason. [Emphasis supplied.]
The Union unilaterally stopped the Company from us-
ing its drivers for the laying of cement on its yard by in-
structions to Moraine's union-member-driver employees to
refrain from such work.
The Union and the Company, in addition to their collec-
tive-bargaining agreement covering truckdrivers, also have
separate contracts covering Moraine's mechanics and
yardmen. The Union contends that the work involved in
paving of the Company's yard is covered by the yardman
contract.
Under the above undisputed but skeletomzed facts, the
issues under the pleadings are: (a) whether the Respondent
Union's ban of work assignments to Moraine's drivers
other than driving and cleaning trucks constitutes an un-
lawful unilateral alteration of its collective-bargaining
agreement with Moraine in violation of Section 8(b)(3) of
the National Labor Relations Act; (b) whether the Re-
spondent Union in fact threatened Moraine's drivers with
possible fines for accepting work assignments other than
truck driving and the cleaning of their trucks; and (c)
whether such threats, if in fact made, constitute under all
the circumstances of this case violations of Section
8(b)(1)(A) of the Act.
The complaint herein was issued on November 29, 1973,
pursuant to a charge filed on May 24, 1973, a copy of
which was duly served on the Respondent Union. The
answer denies the alleged unfair labor practices.
For reasons hereinafter indicated, I find that the Re-
spondent Union is not in violation of the Act and will
accordingly recommend the dismissal of the complaint in
its entirety.
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
The Employer, an Ohio corporation, is engaged in the
sale and distribution of ready-mixed concrete to construc-
tion sites from its plant in Cincinnati, Ohio. During the
past calendar year, Moraine, the Employer, had a direct
inflow of goods and materials , in interstate commerce, val-
ued in excess of $50,000 which it purchased outside of the
State of Ohio and caused to be shipped directly to its plant
in Cincinnati. At all times here material, Moraine has been
an "employer" as defined in Section 2(2) of the Act, en-
gaged in "commerce" and in operations "affecting com-
merce" as defined in Section 2(6) and (7) of the Act, re-
spectively?
1 Par 6 of the complaint was orally amended at the trial to change that
part thereof which reads that Respondent restrained and coerced employees
in the unit "by threatening to fine and by fining said employees" to by
threatening to fine said employees " Accordingly no evidence was presented
that the Union ever fined any of Moraine's drivers for accepting work as-
sip2nments other than truck driving and truck cleaning
The above findings are based on the pleadings as amended at the trial
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION HERE INVOLVED right to use its drivers for any other work outside of their
"classification" as drivers. The meeting ended with an in-
struction by Business Agent Tucker to the Union Steward
Jackson that he was to notify Moraine's drivers that they
were not to engage in any work other than driving and
cleaning their trucks and similarly related work.
On 2 isolated days in the second and third week of April
1973, the Company put one of its drivers, Bobby Joe Jas-
per, to work pouring cement on the company yard. Shortly
thereafter, General Manager Kline again received com-
plaints from Business Agent Herb Alcorn that the use of
company drivers for pouring cement was not allowable un-
der the collective-bargaining agreement. Later that month
on April 23, 1973, Kenith Luttrell, a Moraine mechanic on
layoff status, filed an intramural charge with the Union
against Jasper in which he complained that "Jasper per-
formed duties not within the bargaining unit in that he
worked as a cement finisher for Moraine Materials Com-
pany... . „
On May 10, the Union sent Jasper a copy of Luttrell's
intramural charges against him and in an accompanying
letter notified Jasper that he would be placed on trial on
those charges at the next meeting of the Executive Board of
Local 100 on May 30, 1973, at 8 p.m. at the Teamsters hall
in Cincinnati. In the letter the Union's secretary-treasurer
notified Jasper that, "Failure on your part to attend may
result in disciplinary action against you." Under the consti-
tution of the International Union of which Local No. 100
is an affiliate, one of the disciplinary actions that could be
invoked against Jasper if he was found guilty of the charge
could be the imposition of a fine.
Upon learning of these intramural charges against its
driver Jasper, the Company filed unfair labor practice
charges against Local 100, charging the Local, by its action
against Jasper, with restraint and coercion against Jasper
and a refusal to bargain in good faith with the Company
on the matter of driver work assignments other than driv-
ing and related work, which led to the issuance of the com-
plaint herein and the present hearing thereon.
On May 30, 1973, Jasper, as summoned, appeared at the
union hall to stand trial before the Local's Executive Board
on Luttrell's charges. He was accompanied by many of his
coworker drivers, among them his father, who came to sup-
port him against the charges. No trial before the Local's
Executive Board actually took place on the charges against
Jasper, because, as the result of a preliminary conference
Business Agent Tucker had with Jasper and Luttrell, Tuck-
er took the initiative to dismiss the intramural proceeding
against Jasper after Luttrell agreed to drop his charges
against Jasper and Jasper agreed not to file any counter-
charges against Luttrell. Tucker testified that he dismissed
the intramural charges against Jasper because Jasper and
Luttrell worked under different collective -bargaining
agreements and it was thus impossible for Jasper as a driv-
er to take any work away from Luttrell as a mechanic.
That same night at the union hall after the charges
against Jasper were dropped, Jackson, the shop steward,
again warned the drivers not to accept any work assign-
ments except driving and cleaning their equipment. The
drivers agreed amongst themselves not to accept any more
cement pouring assignments on the company yard because
The Respondent Union is a labor organization as de-_
fined in Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As heretofore noted, Moraine commenced business in
August 1970 as a manufacturer of ready-mix concrete at its
new plant in Cincinnati on a 5-acre plot of ground, most of
which except for the plant and driveways, becomes a mud
area in inclement weather. The Company has a normal
complex of 16 ready-mix concrete truckdrivers for deliver-
ies of concrete to construction sites, 2 yardmen, and 2 me-
chanics. From the opening of the plant in 1970 until Janu-
ary 1972, Moraine made it a daily practice to use its truck-
drivers for "grading and setting forms and pouring on
concrete in the parking lot and driveways" of its mostly
undeveloped 5-acre yard when business was slow or its
drivers could be spared from their primary jobs of deliver-
ing ready-mix concrete to construction projects. Insofar as
possible, the Company used truckdrivers who had experi-
ence in such work. The Company's two yardmen spend
their time chiefly feeding raw materials into the plant and
loading the concrete trucks for delivery. They are worked
overtime every day, but have never been used by the Com-
pany, as have the drivers, for pouring concrete on the park-
ing lot and driveways. As of June 1, 1973, the Company's
ready-mix truckdnvers received $6.40 per hour and the
yardmen received between $6.22 and $6.37 per hour.
Some time in January 1972, the Union's business agent,
Marshall Tucker, during a routine investigation of working
conditions under the collective-bargaining agreement, dis-
covered that some of the Moraine drivers were engaged in
grading, setting forms, and pouring concrete on the yard
surrounding the plant. He stopped the men from doing that
work and told them that it was not allowed under the
Union's collective-bargaining agreement with Moraine.
Tucker likewise informed the Plant's general manager,
Gary Kline, that his drivers were not to be used for con-
crete work on the yard as it was out of their "classification"
as drivers. He also told Kline that the only work the drivers
would be allowed to do under the collective-bargaining
agreement was to drive and clean their assigned trucks.
In February 1973 the Company took the initiative to
arrange a meeting with union representatives to see if the
parties could come to some sort of agreement on the matter
of the Company's continued use of its drivers for duties
other than driving and cleaning their vehicles, more partic-
ularly the laying of cement on the unpaved portion of the
Company's yard. General Manager Kline represented the
Company and Business Agent Tucker and the Union Stew-
ard Joe Jackson, a driver of the employer's facility, repre-
sented the Union. In the 45-minute meeting, the Company
and the Union were unable to come to an agreement, as
the Company insisted that under the collective-bargaining
agreement it had the right to use its drivers for work other
than driving and the cleaning of trucks and as the Union
insisted that under the agreement the Company had no
TRUCK DRIVERS, CHAUFFEURS AND HELPERS LOCAL 100
of the Local's opposition to such work as being outside of
their classification as drivers.
On June 27, 1973, Moraine General Manager Kline, not-
withstanding the Local's known opposition, asked two of
his drivers to engage in cement work on the company yard
although at the time the Company had work for at least
one of these men driving ready-mix concrete to a construc-
tion site . The two drivers declined the cement assignment
on the ground that they risked fines from the Union if they
engaged in such work.
Following this incident , Kline again took up the matter
of such nondriving assignments with Union Steward Jack-
son. Jackson, one of the Company's drivers, told Kline that
as far as he knew it was still the position of the Union that
the company drivers were banned from engaging in any
work other than driving and cleaning trucks. At Kline's
request , Jackson telephoned Business Agent Tucker who
told him that the Union's position on this was still the
same.
The Union reaffirmed its position in a general grievance
meeting held on July 5, 1973, that under the current and
past collective-bargaining agreements and common prac-
tice and custom the Company's drivers could not be re-
quired to engage in work other than driving and related
duties such as cleaning their trucks.
During the period when the current collective-bargain-
ing agreement, dated August 9, 1971, was being negotiated
the matter of the company use of its truckdrivers for pav-
ing its parking lot did not come up for discussion and the
Union, being unaware of this practice of the Company, did
not seek a specific embargo against such usage but relied
on the general provision in the contract that the Company
could use its truckdrivers for work assignments other than
their regular work as truckdrivers for which they were
hired only if such other work was "within reason."
The uncontradicted and credited testimony of Union
Agent Tucker establishes that it is the tradition, custom,
and practice within the ready-mixed concrete industry that
ready-mix concrete truckdrivers may not be used by their
employers for any work other than truck driving and relat-
ed work such as cleaning their mobile equipment, that is,
truckdrivers may not be used for any work wholly outside
of their regular line of work as truckdrivers and completely
foreign and alien to such duties.
In summary the record shows that the Company used
some of its drivers to pour cement on its parking lot, both
at times when it had sufficient orders to keep them busy
delivering ready-mixed cement and at other times when
drivers were sitting around waiting for cement orders for
deliveries to construction sites.
The record further shows in summary that the Company
under the collective-bargaining agreement claims the right
to use its truckdrivers for any work within the above-quot-
ed "within reason" provision of the agreement whereas the
Union contends that this "within reason" provision does
not give the Company the right to use its drivers for work
outside the classification of driving, such as grading, set-
ting forms, and pouring concrete in the parking lot and
driveways of the Company's plant.
1099
B. The Union's Ban Under Collective-Bargaining
Agreement
The Union has a uniform or standard collective-bargain-
ing agreement entitled "Greater Cincinnati Ready Mix
Concrete Producers Agreement" which it uses universally
in its contracts with employers in the ready-mix concrete
industry. It also has a similar uniform, universally used
contract entitled "Yard and Concrete Plant Agreement."
Although not here particularly pertinent, the Union also
has a standard contract entitled "Garage Employees
Agreement."
Moraine is a signatory to each of these three standard
contracts with the Union. The first two mentioned agree-
ments are current contracts effective from June 1, 1972, to
May 31, 1974. The first mentioned contract "Greater Cin-
cinnati Ready Mix Concrete Agreement" (G.C. Exh. 3),
hereafter called the Drivers Contract, defines the term
"employee" as follows:
1. (b) The term "employee" as used in this agreement
shall include all truck drivers and truck drivers' helpers
employed by the Employer . . . who are engaged in
construction work, coal hauling, demolition, excavat-
ing, hauling materials or machinery for construction or
used in construction or demolition. [Emphasis sup-
plied.]
The term "driver" shall include all chauffeurs of
any type of equipment used for hauling as above de-
scribed, regardless of size or nature. . . . The driver's
duties shall include assisting in the loading and un-
loading of trucks.
As it is an undisputed fact that the Employer herein is
engaged exclusively in the sale and delivery of ready-mixed
concrete and is not engaged in any construction work per
se, I find that the only part of the above definition of "em-
ployee" in the collective-bargaining agreement that has ap-
plication herein is that part which defines ". . all truck
drivers . . who are engaged in hauling materials . . . for
construction or used in construction... ." I specifically
find that none of the Employer's drivers are "drivers en-
gaged in construction work,3 coal hauling, demolition, or
excavating. .
The key provision in the Drivers Contract that has a
bearing on whether the contract gives the Employer the
right to use drivers for work other than driving and related
duties, reads as follows:
11. No drivers or helpers shall receive less than the
minimum wage provided for them herein regardless of
the type of work which they are actually required to
perform Any work an employee is required to do, other
than his regularly assigned duties, shall be within reason.
[Emphasis supplied.]
There is no provision in the Drivers Contract which de-
3 As that term is normally used
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fines the term "within reason." There are also no provi-
sions in the contract which either gives the Employer the
right to use its truckdrivers for such out of classification
work as grading, setting forms, and pouring concrete on its
parking lot and driveways or prohibits such use of its
truckdrivers. As more fully noted below, the matter of the
use of the Company's truckdnvers for the paving of the
Company's parking lot never came up for discussion at the
negotiations leading to the current or preceding collective-
bargaining agreement.
The record is undisputed that the "regularly assigned
duties" of the Company's drivers is to haul ready-mixed
concrete in their trucks to construction sites of the
Company's customers.
The only other provision of the Drivers Contract that
may have a bearing on whether the contract gives the
Company the right to use drivers for work other than driv-
ing and related work, reads as follows:
31. (1) Where the Employer assigns the driver to the
same truck he has been driving from day to day, and it
becomes necessary to lay up said truck for repairs, the
driver shall be assigned to any other equipment avail-
able or to any other work. [Emphasis supplied.]
There is no evidence in the instant case that the Compa-
ny ever used the lay-up of a truck for repairs as ajustifica-
tion under the collective-bargaining agreement to assign
the drivers of such temporarily disabled trucks to the work
of grading, setting forms, and pouring concrete in the park-
ing lot and driveway of the plant.
As between the Company's drivers and its yardmen, the
Union contends that the work of paving Company's park-
ing lot must be assigned to Moraine's yardmen under the
"Yard and Concrete Plant Agreement," hereafter called
the Yard Contract, rather than under the Drivers Contract
with the Company. The pertinent part of the Yard Con-
tract bearing on the question of whether the work of pav-
ing the Employer's parking lot must be assigned to its yard-
men, reads as follows:
This agreement shall cover concrete plant laborers, in-
cluding conveyer men, scale men, Hi-loader operators,
building material yard laborers, including car unload-
ers, mule operators, and warehousemen.
Discussion and Conclusions
As the record is clear and undisputed that the Respon-
dent Union has placed a ban on the Company's drivers
from accepting any work assignments other than driving
and related work and has under the ban stopped Moraine's
drivers from engaging in the work of paving the
Company's parking lot, this conduct by the Union gives
rise to the question of whether that conduct constitutes an
unlawful unilateral change in "a term or condition of em-
ployment" in violation of Section 8(b)(3) of the Act. That
question in turn involves an interpretation of the Drivers
Contract . In that connection the only pertinent provision 4
thereof is the above-quoted provision which reads:
Any work an employee is required to do, other than his
regular assigned duties, shall be within reason. [Empha-
sis supplied.]
The employees here involved are the Company's ready-
mixed concrete truckdrivers. The record is undisputed that
their regularly assigned duties are that of driving trucks
filled with churning ready-mixed concrete to construction
sites within the greater metropolitan area of Cincinnati.
Thus their admitted classification is that of truckdrivers.
Under the contract they may only be assigned work other
than delivering cement by truck if such work is "within
reason."
I find and conclude that the term "within reason" means
that the Company's ready-mix concrete truckdrivers may
not under the collective-bargaining agreement be assigned
to any work wholly unrelated to their duties as truckdri-
vers.
I further find and conclude that the Company' s assign-
ments and attempts to assign work to their truckdrivers to
grade, set forms, and pour concrete on its parking lot and
driveways are not "within reason" under the terms of the
collective-bargaining agreement and under the custom and
tradition in the industry because such work assignments
are wholly unrelated and foreign to the regular work of the
involved employees under their hiring, classification and
regular work as truckdrivers.
In view of these findings, I find and conclude that the
Respondent Union did not unilaterally change the terms
and conditions of employment under the collective-bar-
gaining agreement within the meaning of Section 8(b)(3) of
the Act by its embargo on the Employer's drivers from
accepting work assignments such as grading, setting forms,
and pouring and finishing concrete on the Employer's
parking lot and driveways or any other work wholly unre-
lated to their regular job of driving ready-mix concrete
trucks to construction sites because by its embargo the Re-
spondent Union was merely carrying out the intent and
meaning of the proviso in the collective- bargaining agree-
ment here under consideration.
The principal cases relied on by General Counsel and
the Employer, N.L.R.B. v. Communication Workers, Local
1170, 474 F.2d 778 (C.A.2, 1972), enfg., 194 NLRB 872
(1972), and Westgate Painting and Decorating Corp., 186
NLRB 964, (1970), for a cease-and-desist order against the
Respondent Union, are on their face inapposite here under
their peculiar facts. In Communication Workers, General
Counsel sought an order requiring the Union to cease and
desist from its embargo on unit employees from accepting
temporary assignments as supervisors. The order was
granted on the ground that the parties in that case, as stat-
ed by the Board, ". . . bargained about abolishing the
Company's practice of assigning unit employees to tempo-
rary supervisory positions and reached an accord, pursuant
For reasons heretofore noted, all other above-quoted provisions of the
Drivers Contract are not pertinent to the issue under consideration In any
event, the key provision in the contract, as recognized by all parties hereto,
is the above-requoted proviso
TRUCK DRIVERS, CHAUFFEURS AND HELPERS LOCAL 100
to which the Union agreed to withdraw, and did withdraw,
its demand to abolish the practice , in return for a letter of
commitment from the Company outlining its procedures in
implementing the practice ." (Emphasis supplied.) Accord-
ingly, the Board found that the Union had engaged in an
unlawful unilateral change in the collective-bargaining
agreement in violation of Section 8(b)(3) of the Act and the
court of appeals confirmed that finding.
There was no such accord in the present case . From the
beginning and at all times , the Union took the position that
under the terms of the collective -bargaining contract the
Employer could not assign work to its truckdrivers wholly
unrelated to their regular job of driving, such as the paving
of the Employer's parking lot, and the Company took the
position that it had that right under the contract. I have
found and concluded , as shown above , that the contract
gave the Employer the right to assign work to its drivers
other than driving only if such work was "within reason"
and that the assignment of drivers to pave the Employer's
yard was not within reason because it was wholly unrelated
to their regular work of driving ready-mix concrete to con-
struction sites.
The Westgate decision is equally inapplicable under its
peculiar facts to the present proceeding . In Westgate, the
Painters Union promulgated a rule that no journeyman-
painter should paint more than 10 rooms per week. The
Board held the key issue in Westgate to be whether the
Painters Union by imposing its 10-room rule "unilaterally
changed `a term or condition of employment' without ac-
quiescence by the Employers." In Westgate there had been
a running argument over a period of many months prior to
the expiration of the then existing collective -bargaining
agreement over whether the Union had the right to impose
the 10-room rule but there was no resolution of that issue
by any specific provision thereon in the supplanted new
collective -bargaining agreement . Accordingly , the parties
were still at an impasse on that issue . The Board found
that, inasmuch that prior to the imposition of the 10-room
rule there had been no fixed production quotas, the
Union's action in imposing the 10-room rule after the new
collective-bargaining agreement had been executed, al-
though there was no provision therein sanctioning that
rule, constituted unilateral "changes in wages and the
workweek which were neither sanctioned by the contract
nor accepted by the Employer." Consequently, the Board
found the Union in violation of Section 8(b)(3) of the Act
by its unilateral enforcement of its 10-room maximum pro-
duction quota.
Unlike the situation in Westgate, the present case shows
that there never was any discussion by the parties in the
negotiations leading to the past and current collective-bar-
gaining agreements as to whether Moraine as the Employer
had the right to use its truckdrivers to grade, set forms,
pour, and finish concrete on its parking lot. This was in
part due to the fact that the Union did not discover this
practice by the Employer until after the execution of the
current collective -bargaining agreement But in larger part
this lack of any discussion on the problem was due to the
fact that the Union, at all times after its discovery of what
it regarded the Employer's misuse of its truckdrivers, has
protested that the use of Moraine's drivers for paving pur-
1101
poses was contrary to the provision in both the expired and
current collective -bargaining agreements that truckdrivers
could be used only for other work "within reason" and that
the Employer 's use of its truckdrivers for paving its parking
lot was not work "within reason ." I agree with the Union's
position and reiterate my finding and conclusion that the
"within reason" provision in the contract is construed to
mean that the Employer may not use its truckdrivers for
any work wholly unrelated to their duties as truckdrivers
and that work assignments to the Company 's drivers to
pave its parking lot is wholly unrelated to the involved
employees ' regular duties as truckdrivers and therefore not
allowable under the collective -bargaining agreement.
I find that there is a failure of proof that the Respondent
Union is in violation of Section 8(b)(3) of the Act by its
unilateral ban against the Employer 's truckdrivers from ac-
cepting work having to do with grading , setting forms, and
pouring and finishing concrete on the Employer's parking
lot because such work assignments are not within the
"within reason" provision of the parties' collective-bargain-
ing agreement and therefore not allowable under the agree-
ment.
I will accordingly recommend the dismissal of the com-
plaint with respect to its charges of violation of Section
8(b)(3) for failure of proof.
I do not deem it necessary to determine in this proceed-
ing whether the Employer has the right under the Yard
Contract to assign yardmen to the task of grading , setting
forms , and pouring and finishing concrete on its parking
lot.
C. Alleged Threats of Fines by Union Against Employer's
Truck Drivers if They Accept Work Assignments to Pave
Employer 's Parking Lot
The remaining issues in the case are whether the Re-
spondent Union in fact threatened the Employer 's union
drivers with possible fines for accepting work assignments
other than truck driving and cleaning trucks, i.e ., more par-
ticularly, for accepting work assignments to grade, set
forms, and pour and finish concrete on the Employer's
parking lot, and if such threats were in fact made , whether
they are lawful or constitute unlawful restraints and coer-
cions on Respondent 's truckdrivers in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8(b)(1)A) of the Act.
There is considerable evidence that agents of the Re-
spondent Union did threaten possible fines against the
Employer's union drivers if they did not obey the Union's
ban against accepting work having to do with the grading
and the pouring and finishing of concrete on the
Employer 's parking lot and driveways. Earlier findings
above show that the Union Business Agent Tucker, in a
routine investigation of working conditions at the
Company's plant in January 1972, discovered that some of
its drivers were engaged in paving the Company 's parking
lot and that he complained to General Manager Kline that
such work assignments were not permissible under the col-
lective -bargaining agreement. I credit Kline's testimony
that Tucker at that time told him that if the Moraine driv-
ers continued to perform such work "they would be fined"
by the Union.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Previous findings show that intraunion charges were
filed against Bobby Joe Jasper, one of Moraine's truck
drivers, charging that "he worked as a cement finisher"
and that he was summoned to the Union hall on May 30,
1973, to defend himself against the charge. Although the
Union dismissed the charge against Jasper without trial,
Jasper's credited testimony shows not only that he was in-
structed at the hall by Shop Steward Jackson to refrain
from any work assignments other than driving and clean-
ing his truck but that he was also warned that if he engaged
in banned work activities the Union could subject him to a
fine for violating the ban. The Constitution of the Interna-
tional Brotherhood provides that, "Decisions and penalties
imposed upon individual members . . . found guilty of
charges may consist of reprimands, fines, suspensions, ex-
pulsions, revocations.... " (Emphasis supplied.) Jasper,
like all other truckdnvers of Moraine, was a member of
the Union at all times here involved. I do not credit Busi-
ness Agent Tucker's denials that he made no threats of
fines to Moraine truckdrivers who accepted work outside
of driving and related work.
Discussion and Conclusions
The above evidentiary findings leave no doubt that the
Union through its agents did in fact threaten the
Employer's truckdnvers with fines if they accepted any
work assignments outside of their classification as drivers,
or more specifically, if they accepted work assignments to
grade and cement the Company's parking lot. The record
further shows that Local No. 100 had the right to impose
such fines upon any members found guilty of intramural
charges. I accordingly find and conclude that Local No.
100 did in fact threaten to fine Moraine's drivers with fines
if they continued to accept work assignments involving the
grading and paving of Moraine's parking lot.
I find, however, that these threats of fines do not consti-
tute restraints and coercion of the Company's employees
within the meaning of Section 8(b)(1)(A) of the Act be-
cause as heretofore shown and found the Union under the
collective-bargaining agreement has the right to ban work
assignments, such as here involved, which are wholly unre-
lated to the involved employees' duties as truckdrivers. As
the constitution of the International Brotherhood allows
the imposition of fines against union members who are
found guilty of lawful intramural charges, I find and con-
clude that the Union's threats of fines against any Moraine
driver who accepts work assignments to grade and cement
the Company's parking lot, were and are lawful and not in
violation of Section 8(b)(1)(A) of the Act.
I will accordingly also recommend that the complaint be
dismissed with respect to its charges of violation of Section
8(b)(1)(A) of the Act for failure of proof.
Conclusions of Law
The Union by its ban on the Employer's truckdrivers
from accepting work assignments having to do with the
grading and cementing of the Employer's parking lot and
by its threats of fines against any of the Employer's truck-
drivers who accept such banned work assignments, has not
engaged in unfair labor practices within the meaning and
in violation of Section 8(b)(3) and (8)(b)(1)(A) of the Act.
Upon the foregoing findings of fact, and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.