General Warehousemen and Employees Union

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the circumstances disclosed by the record herein the Respondent was free to discharge Polk because of his union membership and activities. As stated in N. L. R. B. v. Edward G. Mudd lifg. Co., 169 F. 2d 571 (on remand from the Supreme Court, 322 U. S. 840), Courts stated : We believe it is clear that Congress intended by the enactment of the Labor Management Relations Act that employers be free in the future to discharge supervisors for joining a union, and to interfere with their union activities. Under somewhat analogous circumstances, the Board has held that the dis- charge of a supervisor for organizational activities on behalf of the rank-and- file union violates neither Section 8 (a) (3) nor 8 (a) (1) of the Act" As stated by the Court of Appeals for the Fourth Circuit in Intercity Adver- tising Company, supra, with reference to one Peeler, a supervisory employee: "as he was a supervisory employee, he was not protected from discharge because of union membership or activities." Conclusions The foregoing and the record disclose that Lawrence M. Polk, Sr., was a supervisory employee of the Respondent, U. S. Phosphoric Products Division, Tennessee Corporation ; that to the knowledge of the Respondent's responsible officials, Polk engaged in organizational activities on behalf of International Chemical Workers Union, A. F. of L.; and that by his discharge on October 27, 1950, the Respondent has not violated Section 8 (a) (1) of the Act. The undersigned accordingly recommends that the complaint herein be dismissed in its entirety. ' Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned make the following : CONCLUSIONS OF LAW 1. International Chemical Workers Union, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. U. S. Phosphoric Products Division, Tennessee Corporation, Respondent herein, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. The Respondent is not engaged in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. [Recommendations omitted from publication in this volume.] 13 See Accurate Threaded Products Co., 90 NLRB 1364 : Alabama Marble Co., 83 NLRB 1047, 1074-1075; see also Tri-Pak Machinery Service, Inc., 94. NLRI' 1715. GENERAL WAREHOUSEMEN AND EMPLOYEES UNION, LOCAL 636, AND GENERAL TEAMSTERS, CHAUFFEURS AND HELPERS, LOCAL 249, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, AFL and Roy STONE TRANSFER CORPORATION. Case No. 6-CD-14. June 11, 1952 Decision and Order Quashing Notice of Hearing This proceeding arises under Section 10 (k) of the Act, which pro- vides that "Whenever it is charged that any person has engaged in an 99 NLRB No. 111. GENERAL WAREHOUSEMEN AND EMPLOYEESUNION, LOCAL 636 663 unfair labor practice within the meaning of paragraph (4) (D) of Section 8 (b), the Board is empowered and directed to hear and de- termine the dispute out of which such unfair labor practice shall have arisen, . . ." On August 17, 1951, Roy Stone Transfer Corporation, herein called the Company, filed with the Regional Director for the Sixth Region a charge against General Warehousemen and Employees, Union, Local 636, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen -and Helpers of America, AFL, herein- called Local 636, and against General Teamsters, Chauffeurs and Helpers, local 249, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein called Local 249, alleging that Local 636 and Local 249 had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.74 and 102.75 of the Board's Rules and Regulations, the Regional Director investigated the charge and provided for a hearing upon due notice to all the parties. The hearing was held before W. G. Stuart Sherman, hearing officer, on October 17 and 18, 1951.-. After this hearing, the Board, deeming it necessary to receive further evi- dence, on January 29, 1952, ordered that the record in this proceeding be reopened and that this proceeding be remanded to the Regional Director for the purpose of holding a further hearing to receive evi- dence concerning a collective bargaining agreement between the Com- pany and Local 171, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL, herein called Local 171, which was in effect during August 1951, when the incidents involved in this proceeding occurred. Pursuant to the Board's order, a further hearing was held on February 15, 1952, before W. G. Stuart Sherman, hearing officer. All parties appeared at these hearings and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues., The rulings of the hearing officer made at the hearings are free from prej- udicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board, but no briefs were filed. The Respondents' motion, in effect, to quash the notice of hearing, made at the original hearing, is granted for the reasons given below. Upon the entire record in the case, the Board finds : I. THE BUSINESS OF TIlE COMPANY Roy Stone Transfer Corporation , a Virginia corporation with its principal office and only terminal in Martinsville , Virginia, is engaged Although Roy Stone Transfer Corporation entered an appearance at the original hearing, no representative of the Company was present at the hearing. The Company did participate fully, however, at the reopened hearing. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the transportation of freight by motor vehicle. It maintains, in addition to its office in Martinsville, offices in Richmond, Virginia; Baltimore, Maryland; Rahway, New Jersey; and Philadelphia, Penn- sylvania. The Company is licensed by the Interstate Commerce Com- mission and operates its motor vehicles in 15 States. During the past fiscal year, the Company's gross revenue from its operations exceeded $1,500,000, of which over $25,000 was derived from the delivery of merchandise to Frank & Seder of Pittsburgh, Inc., in Pittsburgh, Pennsylvania. We find that the Company is engaged in commerce within the mean- ing of the Act, and that it will effectuate the policies of the Act to assert jurisdiction over its operations. H. THE LABOR ORGANIZATIONS INVOLVED Local 636, Local 249, and Local 171 are labor organizations within the meaning of the Act. III. THE DISPUTE In the operation of its transportation business, the Company em- ploys "over-the-road" drivers, whose duties consist of transporting merchandise over appreciable distances and picking up and delivering this merchandise at warehouses and other points of consignment. The Company's drivers are represented by Local 171 of the Teamsters, in Roanoke, Virginia, with which the Company has had contractual relations for at least 6 or 7 years. The most recent contract between the Company and Local 171 was executed in January 1952, to be effective from December 4, 1951, until December 4, 1952. The crucial contract, however, is the 1951 one, which was executed on February 6, 1951, and was to remain in effect until December 4, 1951. Like all their prior agreements since 1946, and like their 1952 contract, this agreement contained the following provision : Section 12 j. Road chauffeurs shall not make pickups or de- liveries except as hereinafter noted. Road chauffeurs shall not make pickups or deliveries at any point where Local Unions affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America have jurisdiction, except at Company or connecting line terminals, unless an indi- vidual and special agreement exists between the Company and the Union involved. Approximately a month after the execution of the 1951 contract, on March 22, 1951, an international representative of the Teamsters assigned to the Pittsburgh area informed the president of Local 249 that Local 171 had notified him of its agreement with the Company GENERAL WAREHOUSEMEN AND EMPLOYEES'UNION, LOCAL 636 665 that "road drivers [were] not to make any pick-ups or deliveries in the jurisdiction of any other Local Union and that that work [was] to be done by local people." It is also evident, as the parties stipulated, that the Company has no "company or connecting line terminals" in Pittsburgh and that there is no "individual and special agreement" between the Company and Local 249, the Teamsters local which has "jurisdiction" over such work in the Pittsburgh area. Thus, the restriction against the Company's assigning such work to its own road drivers, imposed by Section 12 (j), was clearly applicable during this contract period to the Company's Pittsburgh operations. During the month of August 1951, the Company was engaged in transporting furniture from Virginia to the warehouse of Frank & Seder of Pittsburgh, Inc., a company engaged in the operation of a retail department store in Pittsburgh, Pennsylvania. Despite the restriction thus imposed by Section 12 (j) of the contract against the Company using its own employees to make "deliveries" at the ware- house, the Company nevertheless assigned the work of unloading the Frank & Seder merchandise from its trucks to its own road drivers. As a result, a series of incidents occurred which gave rise to the instant proceeding. Members of Local 249 approached the Company's drivers as the trucks arrived at the Frank & Seder warehouse, and demanded that they be hired to unload the Company's trucks. When the drivers refused to hire its members for the unloading work, Local 249 picketed the Company's trucks. In some instances, Local 249 men were finally hired to do this work and the picketing stopped; at other times, the Company's drivers unloaded the trucks in the presence of the Local 249 picket line. Similarly, on several occasions, employees of the Frank & Seder warehouse, who are represented by Local 636, refused to accept or handle the merchandise transported by the Company's drivers as long as Local 249 was picketing the Company's trucks. Many of the Company's drivers have since refused to transport mer- chandise into the Pittsburgh area. IV. APPLICABILITY OF THE STATUTE Section 10 (k) of the Act, although directing that the Board hear and determine disputes out of which Section 8 (b) (1) (D) charges have arisen, contains equally mandatory language directing that in certain circumstances the Board refrain from making any determina- tion. Thus, Section 10 (k) provides: Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of See- - tion 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice 'shall have arisen , unless, within ten days after notice that such 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed. [Emphasis supplied.] Clearly, the purpose of the emphasized provisions was to provide the parties with an opportunity to settle jurisdictional disputes among themselves without Government intervention whenever possi- ble.2 The Board is thus required to withhold any determination of a jurisdictional dispute either where there has actually been a "vol- untary adjustment" or where the Board has before it "satisfactory evidence" that, as of the time the charge was filed or within 10 days thereafter, the parties had "agreed upon methods for the voluntary adjustment of the dispute." 3 As noted above, before the charge herein was filed, and even before the dispute which gave rise to that charge arose, the Company and Local 171 were bound by agreement as to the work in question. That agreement required that the loading and unloading of the Company's trucks be performed by members of the local Teamsters unions which had jurisdiction over such work, and that members of Local 171 per- form this work only in those places where no other local Teamsters union had jurisdiction or where a special arrangement was made by the Company. When the 1951 contract was executed, Local 249 had jurisdiction over such work in the Pittsburgh area. That the Com- pany was aware of this is apparent from the prior claims of Local 249 to similar work in connection with the Company's Pittsburgh operations and from the testimony of the Company herein. That Local 171 recognized Local 240's jurisdiction is amply demonstrated by its notification to Local 249, through a representative of the Inter- national, made in implementation of this agreement shortly after its execution, that Local 249 should perform the work in question. Thus, it is clear that, before the charge herein was filed, the parties to the dispute had set up adequate machinery to deal with the jurisdictional dispute involved herein, and had, within the framework of that ma- chinery, determined that Local 249 should perform the work in issue. The fact that the Company has refused to abide by this determina- tion, in derogation of its contractual obligations, is immaterial. To hold that the Company's refusal to abide by the determination of the dispute, as set forth in its contract with Local 171, nullified this agree- ment, would be, as the Board recently stated, in dealing with an identical situation, "to condone and sanction the Company's breach of 2 See 93 Daily Cong. Rec. 4155. 'Manhattan Construction Company, Inc., 96 NLRB 1045; Wm. F. Traylor, 97 NLRB 1003. SPRAGUE ELECTRIC COMPANY 667 that agreement" and thereby "to discourage and render worthless the making of such agreements, contrary to the statutory purpose to encourage the voluntary adjustment of jurisdictional disputes. In effect, such a holding would permit a party to breach such an agree- ment with impunity because the determination of the dispute pur- suant to the agreement was unfavorable to it, and then to have re- course to this Board for another determination of the dispute which might be favorable to it. In our opinion, this would stimulate abuse of the Board's processes."' Accordingly, we find that, as of the time the charge herein was filed, there was a voluntary adjustment of the dispute, within the meaning of Section 10 (k). We find, therefore, that we are without authority to determine this dispute, and we shall accordingly quash the notice of hearing issued in this proceeding. Order On the basis of the foregoing findings of fact and conclusions of law, and on the entire record in this case, the Board hereby orders that the notice of hearing heretofore issued in this proceeding be, and it hereby is, quashed. 4 Wm. F. Traylor, footnote 3, supra. SPRAGUE ELECTRIC COMPANY and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, PETITIONER. Case No. 1-RC-f2536. June 11) 1952 Supplemental Decision and Certification of Representatives Pursuant to a Decision and Direction of Election issued on March 11, 1952,1 an election by secret ballot was conducted herein on April 3, 1952, under the direction and supervision of the Regional Director for the First Region, among the employees in the voting group de- scribed in the Board's Decision. Upon the conclusion of the election, a tally of ballots was furnished the parties. The tally showed that, of approximately 92 eligible voters, 87 cast valid ballots, of which 35 were for the Petitioner, 34 for the IUE,2 7 for the Independent,' and 11 for none, and there were 2 challenged ballots. As no choice received a majority of the valid votes cast, the Regional Director, under Section 9 (c) of the Act, conducted a runoff election on April 17, 1952, the ballots providing for a selection between the Peti- tioner and IUE, which respectively received the largest and second largest number of valid votes cast in the first election. Thereafter, the 198 NLRB 533. n International Union of Electrical , Radio & Machine Workers, CIO. 2 Local 2, Independent Condenser Workers' Union. 99 NLRB No. 106.