Highway Truckdrivers & Helpers, Local 107, Etc.

Highway Truckdrivers and Helpers, Local 107, international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent and Safeway Stores, Incor- porated. Case No. 4-CD-46. September 1, 1960 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 unfair labor practice within the meaning of paragraph 4(D) of section 8(b), the Board is empowered and directed to hear and de- termine the dispute out of which such unfair labor practice shall have arisen. . . ." On January 5, 1960, Safeway Stores, Incorporated, herein called Safeway, filed charges with the Regional Director for the Fourth Region alleging that Highway Truckdrivers and Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, hereinafter called Local 107, by its officers, agents, and representatives, had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (D) of the Act. It was charged, in sub- stance, that on or about January 2, 1960, and thereafter Local 107 engaged in a strike in order to compel the Employer to assign work to members of Local 107, rather than to the members of Teamsters Locals 639 and 660. Thereafter, pursuant to Section 10 (k) of the Act and Section 102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the Regional Director investigated the charges and provided for an appropriate hearing upon due notice to all parties. A hearing was held before George A. Burnstein, hearing officer, on February 24, 1960, at Philadelphia, Pennsylvania. 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 Employer and Local 107 filed briefs which have been duly considered by the Board. Upon the entire record in the case, the Board makes the following findings : 1. Safeway Stores, Incorporated, is a retail chain of food stores with in excess of 2,000 units located in more than 30 of the several States, and in the course and conduct of its business has an annual 129 NLRB No. 2. 586439-61-vol. 129--2 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gross volume of sales in excess of $1,000,000. We find that Safeway is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction. 2. Highway Truckdrivers and Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor organization within the meaning of the Act. THE DISPUTE A. Facts Since 1950, Safeway Stores, Incorporated, has operated a meat processing plant at Wilmington, Delaware. Meats processed at the plant are delivered by truck to Landover, Maryland, for distribution in the Washington, D.C., area, and to Kearny, New Jersey, for distri- bution in the New York area. Prior to January 1, 1960, these trucks were driven by drivers stationed at Wilmington and covered by collective-bargaining agreements between Safeway and Respondent Teamsters Local 107. The record shows a collective-bargaining history for these drivers dating back to 1950. The termination date of the last such contract was December 31, 1959. Local 107 has never been certified by the Board as the representative of these employees. On October 16, 1959, Local 107 wrote Safeway that it wished to terminate their current contract and negotiate a new agreement. Be- tween mid-October and mid-December, Safeway attempted without success to contact Local 107 representatives by telephone to arrange a meeting. Finally, on December 11, 1959, Safeway wrote Local 107, expressing a desire to meet with Local 107 and discuss the possi- bility of a new agreement. On December 28, 1959, Local 107 mailed Safeway a letter (dated December 21) requesting that Safeway agree to the terms and con- ditions of employment set forth in the letter. Meanwhile, on Decem- ber 28, Safeway wrote Local 107 stating that since writing its letter of December 11, it had decided to discontinue its trucking activities out of Wilmington. Safeway further stated that it would "make every attempt to find comparable work for the [Wilmington drivers] in some other Safeway operation." On December 31, the three Wil- mington drivers who comprised the entire unit represented by Local 107 were terminated. Safeway then put into effect a new system whereby the trucking service for the Wilmington plant was to be done by drivers working out of the Landover, Maryland, and Kearny, New Jersey, distribution points. Drivers employed at Landover are represented by Teamsters Local 639, and those at Kearny, by Teamsters Local 660. Both Locals 639 and 660 have collective-bargaining contracts with Safeway. HIGHWAY TRUCKDRIVERS & HELPERS, LOCAL 107, ETC. 3 At the instant hearing, a Safeway official testified that prior to the expiration of the contract with Local 107, he contacted representatives of Teamsters Locals 639 and 660. He asked if drivers from those respective locals would come into Wilmington and pick up the goods, and he received affirmative answers. It was also testified that the reason Safeway decided to reverse the trucking operation was because better maintenance service for the trucks could be had at Maryland and New Jersey. On January 2, 1960, the three discharged drivers picketed the Wil- lnington plant with signs reading: Zenith Meat Company Safeway Stores unfair to Local 107 IBT Thereafter, truckdrivers, including those dispatched from Landover and Kearny, refused to cross the picket line. On January 4, 1960, Safeway called Local 107 and asked why it was picketing. Local 107's response was that Safeway had not signed a bargaining contract. Frank J. Sheehan, Safeway's industrial relations manager, met with Local 107 the same day. At this meeting Local 107 was told that Safeway "did not intend to continue an agreement with Local 107," and that the work would be done by Locals 660 and 639. Local 107's business representative, Crawford, replied that "it wasn't going to be that way; that Local 107 was going to handle the delivery, or members of Local 107 were going to handle the delivery." 1 When Sheehan stated that Safeway "planned on taking care of the three drivers as far as work opportunity either in Kearny or Landover," Crawford said that "he wasn't interested in that, as they were going to stay right in Wilmington and man [the] equipment." With respect to the juris- diction of Locals 107, 660, and 639, Crawford told Sheehan that Local 107 "had jurisdiction and was going to continue to have it," that "the work belonged to 107, and that 660 and 639 were not going to do it." When Crawford was told that Safeway had cleared the matter with Local 660 and 639 and that they had agreed to handle the deliveries, Crawford replied, "Well, that is not going to be. It is 107." On Janu- ary 9, the picketing was enjoined by the United States District Court for the District of Delaware. B. Positions of the parties Safeway contends, in substance, that Local 107 struck to force it to reassign the truckdriving work from employees represented by Locals 639 and 660 to employees represented by Local 107; further, that as 'During the hearing herein, Local 107 sought to introduce into evidence letters from officials of Locals 639 and 660 purporting to disclaim the work previously assigned to them by Safeway. The hearing officer referred the question of the admissibility of these letters to the Board. We admit them, but find that they are without legal significance to the issues of this case. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Safeway was not required by any Board order or certification to assign the disputed work to employees represented by Local 107, and as there was no contract in force obligating it to so assign the work, Local 107's picketing for this object was violative of Section 8(b) (4) (i) and (ii) (D). Local 107 contends that it struck to pro- test 'Safeway's termination of the collective-bargaining relationship and Safeway's refusal to sign a new agreement; and that there does not exist a "jurisdictional dispute" within the purview of this section of the Act. C. Applicability of the statute Section 10(k) of the Act empowers and directs the Board to hear and determine disputes out of which Section 8(b) (4) (D) charges have arisen. However, before the Board may proceed to a determina- tion of the dispute in Section 10(k) proceedings, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (i) or (ii) (D) has been violated. In order to conclude that reasonable cause exists, the Board must find some evidence in the record showing that (a) a labor organization has engaged in, or induced or encouraged any employee to engage in, a strike or refusal to work or has threat- ened, coerced, or restrained any person, and (b) such action was for an object proscribed by that section of the Act. It is clear that Local 107 established the picket lines at Safeway's Wilmington plant. The Board has held that a picket line itself con- stitutes an act of inducement or encouragement of employees not to perform services for the picketed employer.' The record shows that Local 107's objective in picketing Safeway was to force or require Safeway to assign driving work in question to drivers who are members of Local 107, rather than to other of Safe- way's employees who were represented by Locals 660 and 639. In these circumstances, we are persuaded that there is reasonable cause to believe than an object of Local 107's picketing was the reas- signment of work from Safeway's employees, who were members of Locals 660 and 639, to members of Local 107. Such conduct is plainly prohibited by Section 8(b) (4) (i) and (ii) (D).1 We find, accordingly, that the dispute is properly before us for determination under Section 10(k) of the Act.' 2 United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, AFL- CIO, et at. (Kenneth Markwell and William Hartz, d/b/a Markwell & Hartz Contractors), 120 NLRB 610, 618. 3 Local 4 72, International Laborers Union, Heavy and General Construction , AFL-CIO, et at (Ernest Renda Contracting Co., Inc.), 123 NLRB 1776, and cases cited therein. 4 While Chairman Leedom joined in the Franklin case, International Brotherhood of Electrical Workers, Local 293, AFL-CIO ( Franklin Broadcasting Company (Radio Station WMIN) ), 126 NLRB 1212, in holding that 10(k) was inapplicable where the picketing union was striking to protect its bargaining status and secure the reemployment of dis- charged employees, he regards the instant situation as distinguishable . Here, the Em- ployer made an administrative change in its method of operations affecting the drivers, HIGHWAY TRUCKDRIVERS & HELPERS, LOCAL 107, ETC. MERITS OF THE DISPUTE 5 The record shows that the dispute was over Safeway's assignment of the trucking duties to Locals 639 and 660 rather than to members of Local 107. It is well established that an employer is free to make work assignments without being subject to strike pressure by a labor organization seeking the work for its members, unless the employer is thereby failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work or unless the employer is bound by an agreement to assign the work in dispute to the claiming union.' As the Respondent is not the beneficiary of such order, certificate, or contract claim to the disputed work, we find that it is not lawfully entitled by means pro- scribed by Section 8(b) (4) (i) and (ii) (D) to force or require Safeway to reassign work being performed by Local 639 and 660 to members of Local 107. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in the case, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act: 1. Highway Truckdrivers and Helpers Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is not and has not been lawfully entitled to force or require Safeway Stores, Incorporated, to assign trucking duties to its members rather than members of Teamsters Locals 639 and 660. 2. Within 10 days from the date of this Decision and Determination of Dispute, Highway Truckdrivers and Helpers Local 107, shall notify the Regional Director for the Fourth Region, in writing, whether or not it will refrain from forcing or requiring Safeway, by means pro- scribed by Section 8(b) (4) (i) and (ii) (D), to assign the work in dispute to its members rather than to members of Teamsters Locals 639 and 660. represented by Local 107 pursuant to a contract which was to expire on December 31, 1959, but only after unsuccessful efforts to arrange a meeting for the purpose of negotia- tions , and the Employer coupled the change with an offer to Local 107, which was rejected, to make every attempt to find comparable work for the drivers affected . Moreover, as Crawford 's statement made clear , Local 107, unlike the union in the Franklin case, was striking to secure the assignment of the work to its members , and was interested only incidentally , if at all, in its representative status and the employment of the displaced drivers. Thus , while Local 107 had theretofore been the bargaining representative of these drivers , the dispute at the time of the picketing was, by reason of the change, one involving the assignment of work. Cf The Chairman 's dissent in American Wire Weavers' Protective Association, AFL-CIO , et al ( The Lindsay Were Weaving Company), 120 NLRB 977, 986. 6 Supra, footnote 2, at 623. Fj DECISIONS OF NATIONAL LABOR RELATIONS BOARD ME31BER FANNING, dissenting : In my opinion, the facts in this case do not reveal the existence of a dispute within the meaning of Sections 8(b),(4) (D) and 10(k) of the Act. On the contrary, I believe that this case is governed by the recent decision in Franklin Broadcasting Company,' where the Board held that a strike to persuade an employer to reemploy certain dis- charged employees and to sign a new contract was not a dispute within the meaning of Section 10(k). I think that the strike in this case was in protest against Safeway's unilateral action in eliminating trucking operations at Wilmington, discharging the drivers, and re- fusing to enter into a new contract, and not for the unlawful purpose of compelling a particular assignment of the work in question. In Franklin, the Board held that a strike to gain renewed contractual recognition for certain work was not a jurisdictional dispute, resting its decision on the ground that the dispute was not about work assign- ments but concerned the discharge of certain employees and the em- ployer's refusal to sign a new contract. It seems to me that this case clearly falls within the Franklin rule, and that Local 107 must be per- mitted to strike to defend its historic bargaining status. I have care- fully considered the grounds advanced by Chairman Leedom for distinguishing this case from Franklin, and while there might be slight factual differences between this case and Franklin, the differ- ences do not, in my opinion, affect the applicability of the principle to this case. Safeway's unilateral action in changing its operations, which was deliberately concealed from Local 107 as long as possible, invited exactly the kind of defensive strike action that ensued. Concerted activity by a labor organization to defend its past bargaining position and prevent the undermining of its representative status is not the kind of dispute contemplated by Section 8(b) (4) (D), but is a type of concerted activity that may be legitimately pursued. Accordingly, I would quash the notice of hearing issued in this proceeding. e 126 NLRB 1212. Local No. 3887, United Steelworkers of America , AFL-CIO and Stephenson Brick & Tile Company. Case No. 10-CB-1200. September 7, 1960 DECISION AND ORDER On April 29, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in unfair labor practices and recommending that the complaint therefore be 129 NLRB No. 4.