Seaboard Warehouse Terminals, Inc.

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seaboard Warehouse Terminals , Inc. and Freight Drivers, Ware- housemen Helpers, Bakery Salesmen and Dairy Employees, Local 390, an affiliate of International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America. Case No. 12-RC-370. March 25, 1959 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 Herbert Mintz, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Chairman Leedom and Members Jenkins and Fanning]. Upon the entire record in this case, the Board finds : Compliance : At the hearing the Employer moved to dismiss the petition on the ground that labor organizations with which the Peti- tioner is affiliated are not in compliance with the filing requirements of Section 9(f), (g), and (h) of the Act, and that therefore the Board is without jurisdiction to entertain the petition." The hear- ing officer received evidence relating to the necessity for compliance, including the constitution of the International and the constitution of an organization identified as the Southern Conference, which dis- closed that there exist within 'the framework of the International various Conferences, Divisions, and Councils, with which local unions are connected in one way or another. The International constitution provides for the organization of Conferences on such "geographical "The Employer contends that the hearing officer erred in not permitting it to litigate the compliance status of the Petitioner and the International, with special regard to the manner and scope of those organizations ' distribution of their financial reports to their members. In this connection the Employer contends that the Regional Director erred in revoking a subpoena duces tecum directing an official of Petitioner to produce various documents relating to such distribution . The Employer argues that the Board's policy of not permitting litigation of questions which do not raise questions of statutory inter- pretation of Section 9(f), (g), and ( h) is erroneous, and, in any event, the matters it seeks to litigate do raise statutory questions , as they involve the question of what con- stitutes "furnishing . . . copies" as those words are used in the Act. There is no merit in the Employer's position . The matters sought to be litigated involve questions con- cerning the fact of compliance and as such are only litigable, under our rules, in collateral administrative proceedings . Standard Cigar Company, 117 NLRB 852. As the Employer has not urged any persuasive arguments indicating a need to revise our rules , we affirm, the action of the hearing officer and the Regional Director in this regard ; we reject the Employer's offer of proof relating to this matter ; and we deny its motion to reopen the record, filed subsequent to the hearing. The Employer also contends that the petition is fatally defective because it does not recite the fact that the Employer has refused to recognize the Petitioner. There is no merit in this position . The Employer replied to Petitioner's request for recognition several days after the filing of the petition , but before the hearing , and declined to recognize Petitioner. In these circumstances , we find the petition is a valid petition. See Foothill Electric Corporation, 120 NLRB 1350 ; Advance, Pattern Company, 80 NLRB 29. 123 NLRB No. 48. SEABOARD WAREHOUSE TERMINALS, INC. 379 areas or trade divisions as the General Executive Board may direct." All local unions are required to affiliate with and participate in the activities of the "Area Conference, . . . having geographic jurisdic- tion over such local unions." Area Conferences are financed by a monthly 5-cent per capita tax from the International Union and by a minimum per capita tax of 5 cents, per month, per member, from local unions, affiliated with such conference. Local unions within the geographical jurisdiction of an Area Conference are required to affiliate with such Area Conference. Area Conferences are author- ized to adopt their own bylaws, setting for their functions, subject to approval of the International executive board. In accordance with the above provisions, a charter has been granted to the Southern Conference. Its bylaws require that col- lective-bargaining contracts negotiated by its affiliated local unions must be approved by the Conference, and require a per capita tax payment of 35 cents per month, per member, from its affiliated locals. The bylaws also provide for the establishment of trade divisions, consisting of member unions having representation in such divisions as Building and Construction Division, Sales Division, Warehouse and Shipbuilding Division, Taxi Division, Automotive and Miscel- laneous Division, Freight Division, and such other trade dvisions as the policy board may determine. These trade divisions are often referred to as Councils and the record establishes that the Freight Division, in particular, is also known as the Southern States Drivers Council. The function of these trade divisions is to provide the member locals of the Southern Conference with expert assistance in their organizational and collective bargaining activities. (For a fuller discussion of the functions of such divisions, and their rela- tionship to local unions, see General Shoe Corporation, 122 NLRB 1619.) Testimony of Petitioner's secretary-treasurer, who is also an Inter- national organizer, disclosed the existence of numerous national trade divisions, such as the National Warehouse Division, National Freight Division, National Bakery Division, National Dairy Divi- sion, and National Miscellaneous Division, each of which has, at one time or another, assisted Petitioner in its organizing and collective- bargaining activities.2 The national trade divisions are headed by a chairman, appointed by the president of the International. Their relationship to the International is basically not different from the relationship of the area trade divisions to the Area Conferences. The relationship of Petitioner to the national trade divisions is the 2 This is but a partial list of the national trade divisions , some of which are also re- ferred to as Councils, particularly if their jurisdiction is confined to one large company, such as the A & P Council, Sears & Roebuck Council, etc. The relationship of all national trade divisions to the International is the same , and they function in the same way. .380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same as its relationship to the area trade divisions. Like the area trade divisions, the national trade divisions receive no per capita tax or other contributions from the local unions who call upon them for assistance. However, local unions may be asked at times to make voluntary contributions to finance programs organized by the trade divisions. It is the Employer's position that the Area Conferences, national trade divisions, and the area trade divisions are labor organizations within the meaning of Section 9(f), (g), and (h) of the Act, and are therefore required to comply with the filing requirements contained therein. With respect to the Southern Conference, the only organ- ization besides the International with which Petitioner is affiliated, we need not determine the necessity of its compliance, as the record reveals, and our records show, that it has, in fact, complied.3 The Board has determined, on the basis of a full and complete record, that the Freight Division, or Southern States Drivers Council, is not required to comply ;4 such finding is determinative of the issue herein with respect to the other area trade divisions as well. Be- cause, in essential particulars, the national trade divisions are similar in purpose and function to the area trade divisions and, like them, are merely administrative arms of the organization which created them, we find that they are not required to comply. Accordingly, we find no merit in the Employer's position that the petition must be dismissed because of lack of compliance.3 1. The Employer is engaged in the business of warehousing and delivering of merchandise stored in its warehouse to customers pri- marily located in the Miami area. During the calendar year preced- ing the hearing, its gross volume of business amounted to $163,- 304.27, of which $31,311.49 represents the value of services performed with respect to goods originating outside the State of Florida, and $836.16 represents the value of services performed with respect to goods which were shipped from the Employer's warehouse to points outside the State of Florida. The above information was furnished by the Employer upon re- quest of the Regional Director.' However, the Employer protested 3 General Shoe Corporation, 122 NLRB 1619. ' General Shoe Corporation, supra. 6 As Petitioner is a general local , its jurisdiction cuts across many different trade divi- sions, hence the necessity for this finding. 9 We deny the Employer's application to take deposition of one Harold Gibbons, identified as a vice president of the International , and its motion to remand the proceeding for purposes of introducing additional evidence , because we believe the record as developed at the hearing contains a sufficiently complete and accurate account of the functions and status of the national trade divisions, in the form of testimony of Petitioner's secretary- treasurer, who is also an International organizer , to permit us to rule upon all questions relating thereto. 7 We find no merit in the Employer's objections to receipt into evidence of the corre- spondence between the Regional Director and counsel for the Employer relative to this information . The hearing officer inadvertently neglected to note on the record that these SBABOARb WAREHOUSE TERMINALS, INC. 381 that the gathering of such information was difficult, tedious, time- consuming, expensive, and disruptive of its normal operations, and informed the Regional Director that should any more information be required, it would insist upon reimbursement for the time and ex- pense incurred in obtaining the above information as well as any additional expense incurred in obtaining further information. The Regional Director found it necessary to request further information,8 and did so by letter, offering to make a Board agent available at the Employer's place of business for the purpose of extracting the de- sired information from the Employer's files. Neither the Employer nor its counsel replied to this request, and on October 16, the Re- gional Director issued a subpoena daces tecum and a subpoena ad testi ficandum, to Stuart Gordon, president and director, Seaboard Warehouse Terminals, Inc., returnable on November 4, 1958, direct- ing him to produce such books and records as will show the names and addresses of all customers of the Employer to whom services were ,supplied, and the dollar value of such services, or in lieu thereof, a written statement setting forth this information. There- after the Regional Director denied Stuart Gordon's petition to revoke the subpenas and notified him that unless the Employer produced evidence pursuant to the subpenas on the question of the effect of its operations on interstate commerce, the hearing officer would receive such evidence as is available on November 4, 1958, at the hearing scheduled for that date. On November 3, 1958, Stuart Gordon filed a motion for special permission to appeal from this ruling. In the light of this fact, the hearing officer and counsel for each party agreed that the hearing should be adjourned until after the Board ruled upon the appeal. The Board denied the appeal on November 12, and the hearing was reconvened, at the convenience of Employer's counsel, at 10 o'clock on November 18, 1958. The Employer's coun- sel appeared at this hearing unprepared to produce the requested in- formation, either through documentary or testimonial evidence. He took the positions that the subpenas had been issued only against Stuart Gordon, but not the Employer; that since the return date of those subpenas had expired on November 4, 1958, Stuart Gordon was no longer obliged to appear in response thereto; and that because he believed the presence of Stuart Gordon and/or the Employer's records could not "help our case," he had come unprepared to de- velop further information as to the effect of the Employer's opera- tions on commerce. items of correspondence , which went into the exhibit file as Board Exhibits 2, 3, and 4, had been received, and we hereby correct the record in this respect. The correspondence is admitted for the purpose of showing the nature of the Employer's operations , as well as showing the efforts made to get the necessary jurisdictional information. 8 Additional information required as a result of the change in the Board's jurisdictional policies which occurred at this time . See Press Release ( R-576) October 2, 1958. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . On the basis of the foregoing, we find, contrary to the Employer's contentions, that it will effectuate the policies of the Act to assert jurisdiction. The information furnished by the Employer in re- sponse to the Regional Director's first request indicates that the Employer's operations affect commerce within the meaning of the Act .9 Accordingly, the Board has legal jurisdiction over the Em- ployer. While it is true, as contended by the Employer, that the record, as it stands, does not show that the Employer's operations satisfy the applicable jurisdictional standard,10 this failure is the result of the Employer's lack of cooperation with the Regional Di- -rector's attempts to obtain all the relevant information. In the 'Tropicana case 11 the Board pointed out that the adoption of its jurisdictional standards would not preclude it from departing from those standards in appropriate cases, and established the policy of exercising its statutory jurisdiction in any case where an Employer, upon reasonable request, refused to supply the Board with informa- tion relevant to its jurisdictional determinations. The Board pointed out that employers could avoid the application of such policy either by producing the requested information or by appearing at a hearing before a hearing officer, prepared to cooperate in the production of such evidence. The same policy governs the instant case. The in- formation requested by the Regional Director was reasonably re- 'quired to enable the Board to determine whether the value of the Employer's services to enterprises which themselves meet the Board's jurisdictional standards was sufficient to warrant assertion of juris- -diction. The Employer refused to comply, and ignored subpenas calling for the production of such evidence.12 Moreover, it appeared ,at the hearing unprepared to produce such evidence, for the in- sufficient reason that the disclosure would not "help [its ] case." 9 The Employer 's objections to the use of this information for this purpose are without merit. The information, if accurate , discloses the existence of legal jurisdiction. We presume the Employer did not respond with false information. "'.Tlie applicable standard for "link in commerce" operations, such as those of the Employer, is set forth in H P 0 Service, Inc., 122 NLRB 394. it Tropicana Products, Inc., 122 NLRB 121. '2 We reject the Employer 's claim that subpenas addressed to "Stuart Gordon , President and Director Seaboard Terminals , Inc.," created no obligation on its part to respond thereto. Cf. The Jacksonville Journal Company, 116 NLRB 1136. Further we cannot accept the Employer 's argument that the pendency of its application for special appeal negated its obligation to respond to the subpenas . The November 4 hearing was con- tinued to a mutually satisfactory date for the sole purpose of affording the Employer every opportunity to obtain a ruling from the issuing authority , favorable to its position. Concurrence with the Employer 's reasoning in this particular would accord the same status to the appeal as to an order granting the appeal , an absurd result. In denying the appeal , the Board invited the Employer to argue the matters raised therein in its brief in this case. The Board 'has considered all the points raised in the brief and finds no merit with respect thereto. SEABOARD WAREHOUSE TERMINALS, INC. 383 Accordingly, we find that it will effectuate the policies of the Act to assert jurisdiction over the Employer. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) and Section 2(6) and (7) of the Act. 4. Petitioner seeks to represent a unit of all truckdrivers, ware- housemen, and helpers, excluding all other employees. The record contains testimony of the chairman of the Petitioner to the effect that he organized the Employer's employees and observed employees performing work in truckdriving and warehouse classifications. He also observed other employees, but did not know their classifications or duties. The Employer contends that there is insufficient evidence in the record to establish the appropriateness of the unit. However, the Employer's counsel observed on the record that he felt the unit might be appropriate as to the employees included, but as to the exclusions, he was not able to say. He declined to introduce any evidence on this aspect of the case because he did not regard the establishment of the appropriateness of the unit as part of the Em- ployer's , case. The Board customarily finds truckdriver units to be appropriate, and does ordinarily permit the inclusion of warehouse employees and others in allied classifications where there is shown to be a com- munity of interests between the two groups or in the absence of specific objection thereto.13 The Employer was afforded full op- portunity to present evidence which by its nature was primarily within its possession, showing that such a community of interests does not exist in this case. Accordingly, in the absence of any cogent reasons indicating the inappropriatness of the unit sought, we find no merit in the Employer's objections thereto. In the foregoing circumstances, we find that the following em- ployees employed at the Employer's Miami, Florida, warehouse, con- stitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act : All truckdrivers, warehousmen, and helpers, but excluding all other employees and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 13 E.g., Fredrickson Motor Express Corporation, 121 NLRB 32; Dallas Transfer & Terminal Warehouse Company, 114 NLRB 18; Independent Linen Service Company of Mississippi, 122 NLRB 1002.