Highway Truck Drivers & Helpers, Local 107, Etc.

928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall direct elections in the following units which are appro- priate for collective bargaining purposes under Section 9(b) of the Act. (a) All employees of the electrotype department at the Employer's Nashville, Tennessee, plant, including finishers, molders, casters, batterymen, the builder, and the leadinan in the molding section; re- visers, check-over men, finishers, floormen, and the leadman in the finishing section; all wax rule employees and the leadman in the wax rule section, but excluding all other employees, office clerical em- ployees, guards, the foreman in the molding section, the foreman in the finishing section, and supervisors as defined in the Act. (b) All employees in the rubber plate department at the Em- ployer's Nashville, Tennessee, plant, including press operators and floormen, but excluding all other employees, office clerical employees, guards, the foreman, the leadman, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] Highway Truck Drivers and Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Food Producers Council, Inc. Warehouse Employees Union Local 169, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Food Producers Council, Inc. Cases Nos. 4-CD-40 and 4-CD-42. March 3, 1960 DECISION AND ORDER 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 unfair labor practice within the meaning of paragraph 4(D) of Sec- 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...." On April 13 and June 24, 1959, Food Producers Council, Inc., herein called the Charging Party, filed charges with the Regional Director for the Fourth Region, alleging that Highway Truck Drivers and Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 107, and Warehouse Employees Union Local 169, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 169, had engaged in and were engag- ing in certain unfair labor practices within the meaning of Section 126 NLRB No. 115. HIGHWAY TRUCK DRIVERS & HELPERS, LOCAL 107, ETC. 929 8(b) (4) (D) of the Act. It was charged, in substance, that from about October 29, 1958, Locals 107 and 169 have induced and en- couraged employees of William W. Riegner and other employers to engage in concerted refusals in the course of their employment to perform any services in unloading merchandise, the object thereof being to force and require the aforementioned employers to assign particular work to members of the aforementioned labor organiza- tions, rather than to employees in another trade, craft, class, or labor organization. Thereafter, pursuant to Section 10(k) of the Act and Sections 102.79 and 102.80 of the Board's Rules and Regulations, Series 7, the Regional Director investigated the charges. On August 13, 1959, the Regional Director consolidated these cases, and on September 4, 1959, provided for an appropriate hearing upon due notice to the parties. A consolidated hearing was held before Eugene Al. Levine, hearing officer, on September 15 and 29, and October 21, 22, and 29, 1959. 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 issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. The Charging Party and Respondents filed briefs, which have been duly considered by the Board. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. Upon the entire record in these cases, the Board makes the following : FINDINGS OF FACT 1. Employers involved herein, some of whom are members of the Charging Party, are engaged in the production, packing, marketing, and transportation of fresh and processed agricultural commodities. A majority of the incidents alleged to be in violation of Section 8(b) (4) (D) occurred in the Philadelphia, Pennsylvania, area at warehouses of The Great Atlantic and Pacific Tea Co., herein called A & P, the American Stores Company, herein called Acme, and at Food Fair. All parties stipulated that A & P, Acme, and Food Fair are engaged in commerce within the meaning of the Act. William W. Riegner and Burks-Lehigh Cooperative Fruit Growers, both mem- bers of the Charging Party, annually receive in excess of $50,000 each for deliveries outside Pennsylvania. 2. The parties stipulated that Local 107 and Local 169 are labor organizations within the meaning of the Act. 3. For a considerable period of time, out-of-town truckers making deliveries in the Philadelphia, Pennsylvania, area have been forced 554461-60-vol. 126-60 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to turn over the work of unloading their trucks to other persons. A substantial number of individuals are engaged in this practice, their approach to the truckers being that "we unload you or you don't get unloaded." Most of those involved are in nowise identified in the record. While certain of them may be members of Local 107 and while there is testimony that one such individual identified himself as a Local 107 steward and gave a receipt for money paid him reading "For unloading at Food Fair #107," whereas another individual, identified only as "Ralph" in the record, had described himself as representing the stewards of Local 169,' none of those participating is in fact shown by the record to be acting as an agent, officer, or rep- resentative of either Respondent. The record also discloses an incident involving an individual, whose identity is in dispute in the record, who insisted upon the hiring of an unloader as a result of which telephone conversations, which afforded no relief to the trucker, were held with an unidentified person, assertedly at a Local 107 office. It further appears that Local 107 has warned members not to join in this type of activity and that Local 169, which represents warehouse employees of Acme and A & P under contracts which prohibit those employees from refusing to handle any freight after it is placed on the platform, has periodically reminded its members of this contractual prohibition. Neither Re- spondent has contracts covering the unloading work involved herein. CONTENTIONS OF THE PARTIES The Charging Party asserts that Locals 107 and 169, in violation of Section 8 (b) (4) (D) of the Act, have induced employees of employers herein to refuse to unload merchandise from the employers' trucks with the object of compelling the employers to assign the work of un- loading to members of Local 107. Respondents disclaim responsibility for any of the conduct complained about in these cases. APPLICABILITY OF THE STATUTE Before the Board may proceed under Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section .8(b) (4) (D) has been violated. For Section 10(k) to be applicable in this case, the record must establish at least the responsibility of Respondents for the conduct complained about. We do not believe that the record as a whole warrants holding Respondents responsible for the conduct giving rise to this proceeding. A careful review of the record in this case does not indicate that the conduct was instigated or directed by Respondents or engaged in by i Such is the nature of the evidence relied upon by the Charging Party in the case. SOUTHWESTERN PORTLAND CEMENT COMPANY 931 agents, oicers, or representatives of Respondents, or that it can be attributed to Respondents on any theory of ratification thereof.3 It accordingly follows that an element indispensable to our proceeding -under Section 10(k) in this matter is lacking. In the circumstances, we are compelled to quash the notices 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 these cases, the Board hereby orders that the notices of hearing heretofore issued in this proceeding be, and they herebyare, quashed. i The self-declarations in this connection referred to above are manifestly not testimony As to probative evidence to the contrary . See Bennet P. Sohaufer v. Highway Truck .Drivers d Helpers Local 107, et al. (Horn A Hardart), 280 F. 2d 7 (C.A. 8). Unlike Highway'Truck Drivers d Helpers, Local 107, International Brotherhood of -Teamsters, Chauffeurs, Warehousemen J Helpers of America, AFL-010 (Horn d Hardart Baking Company), 115 NLRB 1184, wherein the circumstances warranted a ending that Local 107 had ratified, and therefore was responsible for, John Zoroiwchak's activity during a 1955 organizational campaign , the circumstances herein are not such as to warrant holding Local 107 accountable for Zorotwchak's more recent conduct. Southwestern Portland Cement Company and Davis W. Sellers, Petitioner and International Union of Operating Engineers, Local 605, AFL-CIO. Case No. 9-RD-$36. March 3,' 1960 DECISION AND ORDER . Upona decertification petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before .Roderick C. Hunsaker, 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 Petitioner asserts that the Union, the currently recognized bargaining representative of the employees designated in the peti- tion, .is no longer the bargaining representative as defined in Section 9 (a) of the Act. 3. No question. affecting commerce exists concerning the representa- tion of employees ot the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, for the following reasons: The Employer and the Union, International Union of Operating Engineers, Local 605, AFL-CIO, an amalgamated local, assert their ;agreement '011 :41V ` 15, `1959, 'covering the employees . sought herein, as 126 NLRB No. 116