Steamship Clerks and Checkers

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. L. A. NO. 1351 , STEAMSHIP CLERKS AND CHECKERS, INDEPENDENT and ROTHERMEL BROTHERS , Charging Party. Case No. 39-CD - 11. April 30, 1954 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, which provides : " 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 January 26, 1954, Rothermel Brothers , herein called Rothermel , filed with the Regional Director for the Sixteenth Region a charge against I . L. A. No. 1351, Steamship Clerks and Checkers , Independent , herein called Respondent , alleging that it had engaged in and was engaging in certain activities prescribed by Section 8 (b) (4) (D ) of the Act . It was alleged, in substance , that the Respondent had induced and encouraged employees of Rothermel to engage in a concerted refusal to work in the course of their employment with an object of forcing or requiring Rothermel to assign particular work to members of 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 all the parties . A hear- ing was held before Leonard 1,. Pickering , hearing officer, on February 23, 1954. All parties 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 is sues . The rulings of the hearing officer made at the hear- ing are free from prejudicial error and are hereby affirmed. Both Rothermel and the Respondent filed briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. BUSINESS OF THE EMPLOYER Rothermel and Maritime Oil Company, herein called Maritime , are partnerships , in each of which L. R. Rothermel and G. W. Rothermel are the sole partners and own the same interest. The two partnerships operate together under the name of Maritime . The name Rothermel is used as a "payroll account , to which money is transferred from Maritime for payment of labor." All other expenses , including purchases, salaries for supervisors and office employees, wharfage, sales expenses , and other overhead , are charged to Maritime. The enterprise engages in the packaging of oil in drums for 108 NLRB No. 108. I. L. A. NO. 1351, STEAMSHIP CLERKS AND CHECKERS 713 shipment to other States and overseas, generally to Army and Air Force bases under Government contracts. During the last year, over one-half million drums of fuel, valued at one million dollars, were packaged and shipped for the armed services. The business of the two partnerships is so integrated as to constitute a single employer for the purposes of determining jurisdiction.' Their combined operations, as described above, clearly affect commerce and have a substantial effect upon the national defense. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion. 2. THE LABOR ORGANIZATION INVOLVED I. L. A. No. 1351, Steamship Clerks and Checkers, Inde- pendent, is a labor organization within the meaning of the Act. 3. THE DISPUTE a. The facts Over a period of about 3 years, Rothermel, on various occa- sions, .employed as timekeeper a member of Respondent Union, I. L. A. No. 1351. At other times , when the business did not warrant a full-time timekeeper,2 Rothermel (or Maritime) assigned the timekeeping duties either to office employees, who were on Maritime's payroll, or to members of Respondent's sister I. L. A. Local 1330,1 who were carried on Rothermel's payroll. The most recent hirings of a member of Respondent local as timekeeper occurred from October 28, 1953, to January 13, 1954, and again for 1 day on January 19. The dispute herein arose on the morning of January 26 when Rothermel began operating with 25 to 40 employees from Locals 1330 and 1331, and assigned the timekeeping work to either an office or supervisory employee instead of to a timekeeper from the Respondent. The critical facts are as follows: On the evening of January 25, 1954, Cook, business agent for Local 1330, had called Rothermel and had asked if Rothermel would "put on a timekeeper." The next morning, January 26, the laborers went to work for Rothermel at 8 o'clock. About this time, Business Agent Cook came over and asked employee Schultz (a Local 1330 member who was 'Rushville Metal Products, Inc., 107 NLRB 1146 at 2. 2 There were great fluctuations in the volume of Rothermel's work. 3 Members of I L. A. Local 1331 who were also employed by Rothermel were not assigned to do any timekeeping work. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in charge in the absence of both the Rothermel brothers) 4 if there was going to be a timekeeper on the job. Schultz answered "not as I know of,"5 and Cook immediately called the Respondent's office and stated over the telephone: ". .. you might as well bring the picket lines on out. . . they wasn't going to have no timekeeper." Cook then instructed the laborers to stop working, and they did so about 8: 15 a.m. However, they did not leave the premises, but waited "to see if they brought the picket line." About 9:30, a committee of five persons from the Respondent arrived. One of them stated to employee Schultz that it "looked like your company's trying to pull one over us not having a timekeeper. . . guess we will have to set up a picket line." At 10 o'clock, the Respondent's pickets arrived; the employees-- all members of Local 1330 and 1331--left the premises; and Schultz closed down the plant. Since then, Respondent has picketed the plant from time to time, and Rothermel has not ordered any men from any of the three I. L. A. locals. b. Contentions of the parties Rothermel contends that, since January 26, 1954, the Re- spondent has violated 8 (b) (4) (D) by forcing and requiring it to assign the timekeeping work to employees in Respondent Union, and has caused members of I. L. A. Locals 1330 and 1331 to refuse to cross Respondent's picket line. The Respondent contends that it has not induced Rothe rmel's employees to engage in a strike or concerted refusal to work, because the employees quit working before the Respondent's representatives arrived and before picketing started, and that there is no testimony that Respondent caused members of the two sister I. L. A. locals to refuse to cross the picket line. The Respondent further contends that it has a labor dispute with Rothermel because of its refusal to continue employing a timekeeper, that the picketing is therefore primary picketing, and that if 8 (b) (4) (D) is construed to prevent such picketing, it is invalid as a violation of the first amendment to the United States Constitution. c. Applicability of the statute 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 Rothermel to assign the timekeeping 4 According to Respondent's answer, Schultz was Rothermel's superintendent. 5 The question and answer were understood to refer to a timekeeper from Respondent Local 1351. I. L. A. NO. 1351 , STEAMSHIP CLERKS AND CHECKERS 715 work to one of Respondent ' s members instead of to another employee.6 As the Board has held that Sections 10 (k) and 8 (b) (4) (D) apply to a primary dispute between an employer and a union, involving the hiring of additional personnel , as here, ? we find, contrary to the Respondent , that a 10 (k) proceeding may be invoked where the union is engaged in picketing the employer's premises in support of its position in such a primary dispute. As to the contention addressed to the constitutionality of these provisions as so construed , the Board has often held that, as an administrative agency created by Congress , it cannot question the constitutionality of the Act which created it, and that it will leave such questions to the courts for determination. Unless and until the courts have determined otherwise, the Board will assume that the Act is constitutional.I Accordingly, we find that the dispute in question is properly before us for determination in a proceeding under Section 10 (k). d. The merits of the dispute It is clear from the record that the dispute was over Rothermel ' s assignment of the timekeeping work to one of its own- employees rather than to a member of Respondent labor organization . It is well established that an employer is free to make such an assignment without being subjected to pressures proscribed by Section 8 (b) (4) (D ), "unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees per- forming such work." There is no outstanding Board order as to the timekeeping work, nor does the Respondent claim to be the certified bargaining representative for such work. Neither does the Respondent have an agreement with Rothermel respect- ing this work. We accordingly find that the Respondent was not lawfully entitled to force or require Rothermel to assign the disputed work to one of its members to the exclusion of one of Rothermel ' s or Maritime ' s other employees. DETERMINATION OF DISPUTE On the basis of the foregoing findings of fact and upon the entire record in this case , the Board makes the following determination of dispute , pursuant to Section 10 (k) of the Act: 1. I. L. A. No. 1351, Steamship Clerks and Checkers, Independent, is not and has not lawfully been entitled to force or require Rothermel Brothers to assign the timekeeping work 6 The Respondent admitted in its answer : "Rothermel Brothers declined to employ any member of Respondent to work as timekeeper and Respondent established'a picket line...." 7 Teamsters Local 175 (Biagi Fruit & Produce Co.), 107 NLRB 223. Member Murdock, who dissented in that decision, deems himself bound thereby. 8New Castle Products , Inc., 99 NLRB 811, 812. 71 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to one of its members rather than to an employee of Rothermel Brothers or Maritime Oil Company. 2. Within ten ( 10) days from the date of this Decision and Determination of Dispute , I. L. A. No. 1351 , Steamship Clerks and Checkers , Independent , shall notify the Regional Director for the Sixteenth Region , in writing , as to what steps it has taken to comply with the terms of this Decision and Determi- nation of Dispute. MOTOR CARGO, INC. and MOTOR CARGO, INC. INDEPEND- ENT UNION, Petitioner. Case No. 8-RC-2131. April 30, 1954 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Philip Fusco, hearing officer. The hearing officer' s' rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 1 3. No question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks a unit of owner-operators2 on a com- panywide basis, excluding all other over -the -road truckdrivers and employees of the Employer. The Employer and the Team- sters contend that the unit sought is inappropriate because of the Employer's prior history of bargaining on abroader basis. The Employer has approximately 31 truck freight terminals covering a 15-State area, with the home office terminal being located in Akron, Ohio. With the exception of the Ohio terminals, the bargaining for all over-the-road truckdrivers, including owner-operators, of all of the Employer's terminals has been on a multiemployer multistate basis since 1938. The over-the- road truckdrivers, including owner-operators, of the Em- ployer's Ohio terminals were bargained for on a multiemployer Statewide basis from 1938 to 1952. The Ohio employers, how- 'Central States Drivers Council and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, and various locals of said International, herein collectively referred to as the Teamsters, Highway Carriers Employers Association, Inc., Steel Truckers Employers Association, and Missouri-Kansas Motor Carriers Conference were permitted to intervene at the hearing. 2 The owner-operators are over-the-road truckdrivers who own and drive equipment which they have leased to the Employer. 108 NLRB No. 98.