International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America

TEAMSTERS LOCAL 175, INTL BROTHERHOOD OF TEAMSTERS 223 did not in any manner constitute such interference as to warrant setting aside the election.4 We agree with the conclusion of the Regional Director that the objection lacks merit . Without regard to how the conduct of the union representatives is characterized , we are per- suaded, and find, that it did not prevent the sort of free and untrammeled choice of representatives contemplated by the Act. Under all the circumstances , we conclude , as did the Regional Director , that the objection does not raise material and substantial issues respecting the results of the election. As the Tally of Ballots shows that the Union obtained a majority of the valid votes cast in the election, we shall certify the Union as the certified bargaining representative of the employees in the appropriate unit. [The Board certified Shopmen's Local Union No. 539 of the International Bridge, Structural and Ornamental Iron Workers, AFL, as the designated collective -bargaining representative of the employees of the Employer in the unit heretofore found appropriate.] 4In connection with this objection, the Employer and Tate allege that the union repre- sentatives, in the course of their conduct at the club, violated sections of the code of the city of Birmingham and the State of Alabama. The Regional Director rejected this argument on the ground that the Board is not the proper agency for the determination of such issues. that such issues are not germane and, moreover , that there was no evidence that any of the union representatives have been convicted for such alleged violations. TEAMSTERS LOCAL 175, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL and BIAGI FRUIT & PROD- UCE COMPANY. Case No. 9-CD-19. November 27, 1953 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF THE CASE This proceeding arises under Section 10 (k) of the Act, which provides that "whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4 (D) of Section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen. . . ." On August 26, 1953, Biagi Fruit & Produce Company, herein called the Company, filed with the Regional Director for the Ninth Region a charge alleging that Teamsters Local 175, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen & Helpers of America, AFL, herein called the Respondent , had engaged in and was engaging in certain 107 NLRB No. 70 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities proscribed by Section 8 (b) (4) (D) of the Act. It was alleged, in substance, that the Respondent had induced and encouraged the Company's employees to refuse, in the course of their employment, to unload merchandise from the Company's trucks at the Kroger Company's warehouse in Charleston, West Virginia, with the object of forcing or requiring the Company to assign such work to members of the Respondent rather than to its own employees. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and provided for an appropriate hearing upon due notice to both parties. A hearing was held before Clifford Hardy, hearing officer, on September 28, 1953. The Company and the Respondent appeared at the hearing 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 hearing are free from prejudicial error and are hereby affirmed. Although the parties were afforded an opportunity to file briefs with the Board, they did not do so. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. The Company's business The Company is engaged in the wholesale distribution of fruit and produce in and around Charleston, West Virginia. During 1952 the value of goods shipped to the Company from points outside the State of West Virginia was in excess of $900,000, and over $25,000 in value of such products were sold and distributed to points outside the State of West Vir- ginia. The Board finds that the Company is engaged in commerce within the meaning of the Act. 2. The dispute (a) The facts The Company has four truckdrivers who deliver merchandise from its own warehouse to the premises of its customers. Kroger is a customer of the Company. Merchandise which it buys from the Company is unloaded at its trucking dock adjacent to its warehouse. The Respondent is the collective-bargaining representative for a unit of Kroger warehouse employees. The Company's employees are not represented by any labor organi- zation. Over the years a custom has grown up with Kroger's knowl- edge and passive consent, at the least, of permitting one or more TEAMSTERS LOCAL 175, INTL. BROTHERHOOD OF TEAMSTERS 225 members of the Respondent, assigned from its hiring hall, to station themselves at the Kroger dock for the purpose of unloading trucks of Kroger suppliers. Although the services of the Respondent's unloaders are nominally not required but are available, for a fee, to all truckers who are delivering mer- chandise at the Kroger warehouse, it has been a practice for the union unloaders not to permit nonunion drivers, except farmers delivering their own produce, to do their own unloading at the Kroger dock. The union unloaders or the Respondent's stewards at the Kroger warehouse determine who is and who is not to be permitted to unload at the dock by requesting drivers to show their union cards. All drivers of the Company have been instructed to do their own unloading as part of their delivery job, and always do so except at the Kroger warehouse. One driver testified that early in July 1953 he delivered a load of apples to the Kroger ware- house and asked the unloader on the dock if he could unload it himself. He was told that he could not. On August 10, 1953, he drove up to the Kroger dock and started to unload but was stopped by the unloader. The driver was then a member of the Respondent and showed the unloader his union card. He was first told he could continue unloading, but after the unloader left the dock for a few minutes he came back and told the driver that he would not be permitted to complete the urn-loading. The unloader then proceeded to do the work hirf1self. Another company driver testified that he had tried to unload at the Kroger dock on a number of occasions but was never permitted to do so. Despite the testimony of the Respondent unloaders that no one is ever forced or required to use their services, we find, based on the testimony of the two company drivers and the Kroger receiving clerks, that nonunion drivers, except farmers driving their own trucks, are not permitted to unload at the Kroger dock but are required to hire a union unloader and to pay him the prescribed fee set by the Respondent. (b) Contentions of the parties The Company contends that by the above conduct the Re- spondent violated Section 8 (b) (4) (D) of the Act. The Respondent, represented by counsel, participated in the hearing and cross-examined witnesses . It did not, however, present any witnesses and made no clear statement of its position on the merits of this proceeding. Neither the Re- spondent nor the Company filed briefs with the Board. (c) Applicability of the statute The charge, which was duly investigated by the Regional Director, alleges a violation of Section 8 (b) (4) (D) of the Act, and the Regional Director was satisfied, on the basis of his 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD investigation, that a violation of the section had been com- mitted. On the record before us , we find that there is reasonable cause to believe that the Respondent engaged in activities proscribed by Section 8 (b) (4) (D ) of the Act , with the object of forcing or requiring the Company to assign the work of unloading merchandise at the Kroger warehouse to its members rather than to the Company's own employees . We therefore find that the dispute in question is properly before us for determination in a proceeding under Section 10 (k). (d) Merits of the dispute It is clear from the record that the Respondent has no immediate or derivative rights under any existing contract upon which it could predicate any lawful claim to the work in dispute . As indicated above, the Company has no bargaining relations with the Respondent or with any other union. Nor does it appear that the Company is failing to conform to any order or certification of the Board determining the bargaining representative for the employees performing the work in dispute. Neither is there any question that the Company has assigned the work to its own employees. These facts are determinative of the present dispute. The Board has held that Sections 8 (b) (4) (D ) and 10 (k) "do not deprive an employer of the right to assign work to his own employees , nor were they intended to interfere with an employer's freedom to hire, subject only to the requirement against discrimination as contained in 8 (a ) ( 3)."t Consequently, in determining this dispute , it is sufficient on the facts before us that the Company assigned the work to its own employees, and that the Respondent engaged in proscribed activities to force or require the Company to assign this work to its own members. Accordingly , we find that the Respondent is not lawfully entitled to force or require the Company to assign the work of unloading its trucks at the Kroger warehouse at Charleston, West Virginia , to its members rather than to employees of the Company.' DETERMINATION OF DISPUTE On the basis of the foregoing findings of fact, and the entire record in this case , the Board makes the following determina- tion of the dispute, pursuant to Section 10 (k) of the Act: 1. Teamsters Local 175, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, AFL, and its agents , are not and have not been lawfully entitled to lUnited Brotherhood of Carpenters and Joiners of America, et al (Stroh Brewery Co.), 88 NLRB 844; Juneau Spruce Corporation, 82 NLRB 650. 2 D1rect Transit Lines , 92 NLRB 1715. TEAMSTERS LOCAL 175, INTL. BROTHERHOOD OF TEAMSTERS 227 force or require Biagi Fruit & Produce Company to assign the work of unloading trucks at the Kroger Company warehouse at Charleston, West Virginia , to its members rather than to the employees of the Company. 2. Within ten ( 10) days from the date of this Decision and Determination of Dispute , Teamsters Local 175, International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America , AFL, shall notify the Regional Director for the Ninth Region, in writing, as to what steps it has taken to comply with the terms of this Decision and Determination of Dispute. Member Murdock, dissenting: I cannot agree with the majority that this case--a primary dispute between an employer and a union--is the type of case in which Congress intended the Board to conduct proceedings under Section 10 (k) and 8 (b) (4) (D) of the Act. As I stated in my dissenting opinion in Direct Transit Lines, Inc., 92 NLRB 1715, 1723, it is my view that Section 10 (k) and 8 (b) (4) (D), as shown by the legislative history, should be limited to cases of jurisdictional disputes (my opinion in Moore Drydock Company, 81 NLRB 1108, 1121), that is, those disputes on work assignments between competing labor organi- zations (see the opinion in which Member Styles and I dissented in New London Mills, Incorporated, 91 NLRB 1003,• 1008) when the employer is neutral and indifferent to which of the competing labor organizations performs the work. (My dissent in Juneau Spruce Corporation, 82 NLRB 650, 660.) In this case, as I also stated in Direct Transit Lines, we not only do not have a "jurisdictional dispute," but we do not even have a dispute, as the Board did in New London Mills, between a labor organization and a group of unorganized employees. There is no struggle here between the Respondent Union and a group of employees of the Company over the assignment of work. The dispute here, as found by the majority, is one between an employer and a labor organization with regard to the hiring of additional employees and does not concern the replacement of the Company's drivers. Although my review of the facts of this case raises consider- able doubt in my mind as to whether the General Counsel has sustained the burden of proving that the Respondent Union was responsible for the conduct of the unloaders who were union members, I do not need to reach that question. In the light of the legislative history of Section 10 (k) and for the reasons I stated in my dissenting opinion in Direct Transit Lines, Inc., I am of the opinion that under Section 10 (k) the term "dispute" does not mean a dispute, such as is presented here, between a union and an employer in which 1 of the 2 alleged "groups" of employees "have no real stake in the outcome, but find themselves in alliance with the Employer either as agents or necessary go-betweens."