Truck Drivers Local Union No. 375

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John Roy Farris is classified as a millwright by the Employer. The record reflects that he performs 90 percent of the electrical work that is done on the night shift. However, there was no evidence pre- sented regarding his training and skills, the type of the electrical work that he performs, or the amount of time that he devotes to elec- trical work. We shall not include Farris with the maintenance elec- trician group.' The trades-helpers are assigned to the maintenance department, but none of the employees in this classification are permanently assigned to the maintenance electricians. On the contrary, as their services are required, the trades-helpers are assigned to the various craftsmen in the maintenance department. As the trades-helpers are not regularly assigned to the maintenance electricians we shall also exclude them from the voting group.' Accordingly, we shall direct that an election be conducted in the following voting group of employees at the Employer's Wichita, Kansas, Pawnee Road and Prospect plants : All maintenance electricians, excluding all other employees, Elec- trician Leadmen Sawyer and Hawkins,' and all other supervisors as defined in the Act. If a majority vote for the Petitioner they will be taken to have indi- cated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for the unit described in paragraph numbered 4, which the Board, under such circumstances, finds to be appropriate for purposes of collective bar- gaining. In the event a majority vote for the Intervenor, the Board finds the existing unit to be appropriate and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of Election omitted from publication.] 4 Southern Paperboard Corporation,-.112 NLRB 302. s Beaunit Hills, Inc., 109 NLRB 651, 657, 659. 6 Sawyer and Hawkins regularly devote approximately 20 percent of their, time to-super- visory duties. They assign work to the maintenance electricians and then inspect the finished jobs. They also effectively recommend the hiring and promotion of the main- tenance electricians. On these facts we find that Sawyer and Hawkins are supervisors within the meaning of the Act. See General Electric Company, 109 NLRB 2. Truck Drivers Local Union No. 375, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A.F.L. and George Maxwell. Case No. 3-OD-14. Avgusst 2, 1955 DECISION AND DETERMINATION OF DISPUTE 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 113 NLRB No. 50. TRUCK DRIVERS LOCAL UNION NO. 375 453 unfair labor practice within the meaning of Section 8 (b) (4) (D) of the Act, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen. . . . On November 1, 1954, George Maxwell, a labor relations consultant acting on behalf of Service Transport Co., herein called Service, filed with the Regional Director for the Third Region a charge alleging that Truck Drivers Local Union No. 375, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., herein called Local 375, has engaged in and is engaging in certain activities proscribed by Section 8 (b) (4) (D) of the Act. It was alleged, in substance, that Local 375 has induced and encouraged employees of Service to engage in a concerted refusal to work in the course of their employment with an object of forcing or requiring Service to assign city truckdriving duties to members of Local 375 rather than to employees who are over-the-road drivers, members of the Teamsters under the jurisdiction of the Central States Drivers Council, which is not a party to this proceeding. Pursuant to Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and pro- vided for an appropriate hearing upon due notice to all the parties. Thereafter a hearing was held before William J. Cavers, hearing of- ficer, between January 25 and February 4,1955. Both the Respondent and Service appeared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence on the issue. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Service has filed a pleading in the nature of a brief. Upon the entire record in the case, the Board finds : 1. The business of the Employer Service Transport Co. is an interstate motor freight carrier with its principal office at Cleveland, Ohio. It maintains 11 terminals in 4 States. The Buffalo terminal, here concerned, is actually located out- side Buffalo at Hamburg, New York. Some of the freight Service carries is dropped at terminals of interlining carriers such as Direct Winters Transport, Ltd., hereinafter referred to as Direct Winters, for transshipment to consignees in Canada. During the calendar year 1954 Service transported freight between its various terminals for which it received revenue in excess of $2,000,000. We find that Service Transport Co. is engaged in commerce within the meaning of the Act. We are also satisfied in view of the total volume of the Company's annual business and of the overall interstate character of its operations, that it annually receives at least $100,000 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from its interstate operations. Accordingly, we find that it will ef- fectuate the policies of the Act to assert jurisdiction here. See Rollo Transit Corp., 110 NLRB 1623. 2. The labor organization involved Truck Drivers Local Union No. 375 of the Teamsters is a labor or- ganization within the meaning of the Act. We likewise find that Cen- tral States Drivers Council, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, A. F. of L., is a labor organization within the meaning of the Act. 3. The dispute Service contracts for its over-the-road drivers with the Central States Drivers Council, and for its city drivers in the Buffalo area with Local 375 of the Teamsters, the Respondent here. The over-the-road agreement, expiring January 31, 1955, but apparently being renegoti- ated at the time of hearing, exempts city or local work in the following language : Article I, Section 3. Local dock work or city pickup and de- livery service is not subject to the terms and conditions of this Agreement, but is subject to separate agreements entered into between the Employer and the involved Local Union. Employees subject to this agreement shall not be permitted to perform dock work or city pickup and delivery service, except as specifically permitted herein. [Emphasis supplied.] An exception concerning "steel haul only" is as follows : Article XXXIX, Section 1. The description of the iron and steel items is as follows : [Then follows a list ranging from angles to rolling mill rolls and individual castings weighing more than 25,000 lbs.] Section 2. One pickup and one delivery of a solid load may be made by the road drivers in the event same can be performed with- in the Interstate Commerce Commission regulations, provided, however, no driver shall be compelled to make delivery at final destination who has worked and/or driven ten (10) hours. There shall be no pickup or delivery of a solid load in the area under the jurisdiction of the two 705 Local Unions and Local 710 of Chicago, Illinois. The following article XL, concerning "perishable commodities only," contains the same section 2 exempting solid loads , but with the added proviso : "Where local conditions do not now permit any such pickup and/or delivery, such conditions shall continue." TRUCK DRIVERS LOCAL UNION NO. 375 455 In addition the contract contains an article XXIII which is entitled "pickup and delivery limitations," ending with a provision that none of its limitations applies to the transportation of iron, steel, and perish- able commodities as defined in articles XXXIX and XL of the contract. The contract between Local 375 and the Company covering city drivers, on the other hand, contains no definition of the work covered other than by implication from its "City Drivers" title. This contract expires June 30, 1955. The following clauses have pertinence in this proceeding : Article I-Union Security Section I Membership in the Union on or after the 30th day following the beginning of employment, or the effective date of this section of the agreement, whichever is later, shall be a condition of employ- ment to the extent consistent with law. Article II-Employment Section I d. When outside vehicles are engaged, they shall be operated by members of the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Local 375 in good standing. e. If an Employer calls the Union for a city, driver and none are available he may use a dockman or helper to leave the terminal with a Road Driver, Gypsy or Broker to deliver or pick up a load.. If there is a violation of this clause the penalty shall be a minimum of eight (8) hours at the drivers rate of pay. Article VIII, Disputes and Arbitration Section I In order to facilitate and insure the peaceful, harmonious and continued operation in the trucking industry and the continued and undisturbed common carrier service to the general public by the said Employer, it is hereby agreed that all grievances of the said Employer and the said Employees, and/or the said Local shall at all times be submitted for handling in the following; manner. b. Any grievances that cannot be settled between the Employer,, Employee and/or said Local shall be referred to a grievance com- mittee consisting of one member of the Buffalo Trucking Associa tion, one member of the Common Motor Carrier's Association, who will represent the Employer, and two members of the Local 379288-56'----vol. 113-30 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who will represent the Employee, if a member of said Local, whose majority decision shall be a final and binding one. c. This committee failing to reach a majority decision on any matter before them, shall appoint a fifth or impartial member for the purpose of reaching a majority decision. If unable to agree on the fifth or impartial member within ten (10) days, the American Arbitration Association shall select the fifth or im- partial member. The majority decision in such case shall be final and binding. Section II. The parties further agree that there shall be no stoppages, strikes, lockouts, or slowdowns in work when such disputes or grievances arise and while they are in the process of adjustment and arbitration. Section IV. It is agreed that the within contract shall be considered the standard contract for that branch of trucking industry covered by this agreement. More than 90 percent of Service's business consists of hauling iron and steel. It employs 3 city drivers at its Buffalo terminal and uses them for pickup or delivery of split loads of flat steel (that is, going to more than 1 consignee), for loads being interlined to Canadian carriers, and for loads of commodities other than steel. Full loads of flat steel not going to an interline carrier are loaded and unloaded by its over-the-road drivers. Occasionally Service calls Local 375 for an extra city driver. The actual functions of its city drivers are limited to maneuvering the trucks at the loading or unloading points, and to securing or untieing the load. They frequently go direct from their homes to the point of pickup or delivery upon telephone instruction. In July 1954, at the insistence of Local 375, a meeting of truckers covered by city contracts similar to that with Service was held to discuss the failure of these employers to use city drivers on all local pickups and deliveries, in accord with the Local's interpretation of sections II, I (d) and (e) of the city contract. It was the sense of this meeting, although the representatives of some employers, including Service, stated that they could not bind their companies, that all em- ployers would go along with the Union's demand until further dis- cussion was possible. No further meeting of this group was held. One witness for the Employer, himself in the trucking business, testi- fied concerning the dispute and arbitration procedure provided in the city contract and stated : "In this particular case we never got that far." Some time after the July meeting Local 375 complained to Service that Service was not living up to its informal agreement made at the July meeting. In August a meeting was held by Local 375 with those TRUCK DRIVERS LOCAL UNION NO. 375 457 truckers primarily engaged in hauling iron and steel. At this meeting Service urged continuance of its practice of having over-the-road drivers pick up and deliver full or solid loads of iron and steel. Local 375 took the position, however, that city drivers should be used instead. Service contended that the quoted sections (d) and (e) of article I of the city contract were unenforceable as written; the Local threat- ened to picket for violation of its contract, apparently without any employer suggesting the possible applicability of the no-strike clause of the contract. No agreement was reached. Late in October representatives of Local 375 complained to Service's Buffalo terminal manager of specific alleged violations of the con- tract, and stated that the Union would have to shut the terminal down if the penalty were not paid. It was not contested by the Union that five of the trucks complained of contained full loads of flat steel de- livered to a Buffalo consignee. Service contends these were the only loads involved, and its terminal manager, although brought back on rebuttal was not cross-examined about four additional commodity loads alleged to have been violations by the Union. The day follow- ing the Union's complaint, 2 of Service's city drivers picketed the ter- minal for 45 minutes, during which time 2 Service trucks drove in and were not unloaded. Also Direct Winters was informed by the Local that a Service truck was on its way to the Direct Winters' Buffalo ter- minal, and when it arrived, the latter's employees refused to unload that truck. The next day, a Saturday, employees of Direct Winters again refused to unload a Service truck, which returned to Service's terminal. All three city drivers of Service picketed the terminal for half an hour on the following Monday morning. That was the end of the picketing. Representatives of Service and the Local met that day, November 1, 1954, but reached no agreement. The charge was then filed. Subsequent conferences also resulted in no agreement by the parties. An amended charge alleging inducement of employees other than those of Service and Direct Winters was filed December 28, 1954. The record deals only with refusals to unload at Service and at Direct Winters. 4. Contentions of the parties Service contends that by the above conduct Local 375 violated Sec- tion 8 (b) (4) (D) of the Act in an effort to force the transfer of work of one trade, class, or craft to that of another trade, class, or craft, thus modifying the existing interpretation of the city contract. Local 375 contends that the city contract contains no exceptions covering full loads of steel; that the contract wording takes precedence over any custom or practice to the contrary; that the city contract, coming after the road contract, takes precedence over that contract; that, in addition, it would interpret the road contract as prohibiting all 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD local pickups and deliveries. Hence it argues that there has been no violation of the Act by it and that all city pickup and delivery work belongs to its members. 5. Applicability of the statute On the record before us we find that there is reasonable cause to be- lieve that Local 375 engaged in activities proscribed by Section 8 (b) (4) (D) of the Act, with the object of forcing or requiring the Com- pany to assign all city pickup and delivery work to its members, rather than permit certain portions of the work to continue to be performed by the Company's over-the-road drivers in accord with the terms of the Company's contract with the Central States Drivers Council. We therefore find that the dispute in question is properly before us for de- termination in a proceeding under Section 10 (k) of the Act.' Were we to quash this proceeding because of the failure of Service and Local 375 to seek arbitration under article VIII of their agreement, it is doubtful whether any useful purpose would be served inasmuch as the' over-the-road drivers would not be a party to it. See Winslow Bros. cC Smith Co., 90 NLRB 1379, 1384, and National Broadcasting Com- pany, 105 NLRB 355, footnote 22. Compare Roy Stone Transfer Corporation, 99 NLRB 662, and cases cited at footnote 3.1 6. Merits of the dispute Local 375 bases its claim to the work in question not on Board certification but on its written contract with Service and its alleged oral agreement of July 1954. However, on this record it is clear that Local 375 is urging an interpretation of its written contract that is not only contrary to the method of interpreting it which has obtained in the past as between Service and it, but is without specific sanction in the ambiguous language of clauses (d) and (e) of section I, article II of the contract. The alleged oral agreement of July, resulting from the meeting between the carrier group and Local 375, we consider a temporary expedient in negotiations between the parties which be- stowed no contract rights upon the parties to it. On the other hand we note that the interpretation of the city contract urged by Service conforms with the unambiguous provisions of Service's over-the-road contract with the District Council. In the circumstances, and without passing upon the validity of the clauses of the city contract relied upon by Local 375, we find that Local 375 is not lawfully entitled by means proscribed by Section 8 (b) (4) (D) to force or require, the 'Member Murdock would quash this proceeding which concerns only city and road drivers, the latter having no real stake in the outcome , for lack of a "dispute" within the meaning of Section 10 ( k) of the Act. See his dissents in Direct Transit Lines, Inc.; 92' NLRB 1715 , 1723, and Biagi Fruit & Produce Company, 107 NLRB 223. ' 'As Member Murdock would quash for lack of a dispute, be would not reach the prob- lem of the efficacy of arbitration proceedings in a situation of this kind. THE BORDEN FOOD PRODUCTS COMPANY 459 Company to assign to its members rather than to over-the-road drivers the city pickup and delivery work on solid loads of iron and steel. However, we are not by this action to be regarded as "assigning" the work in question to the over-the-road drivers. 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 amended Act: 1. Truck Drivers Local Union No. 375, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., and its agents are not, and have not been, lawfully entitled to force or require Service Transport Co. of Cleveland, Ohio, by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the city pickup and delivery work on solid loads of iron and steel in and around Buffalo, New York, to members of Local 375 rather than to Service Transport Co.'s over-the-road drivers. 2. Said Local Union No. 375 shall, within ten (10) days from the date hereof, notify the Regional Director for the Third Region in writing, whether or not it accepts the Board's determination of this dispute, and whether or not it will refrain from forcing or requiring Service Transport Co. of Cleveland, Ohio, by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the work described in paragraph 1, above, to members of Local 375 rather than Service Transport Co.'s over-the-road drivers. The Borden Food Products Company, Division of The Borden Company and International Association of Machinists, AFL, Petitioner. Case No. 3-RC-1510. August 3, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Bernard Marcus, 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 meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. At the hearing, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, hereinafter referred to as Meat Cutters, sought to intervene in this proceeding on the ground that, under a recent merger, it is the legal successor to International Fur and 113 NLRB No. 51.