Teamsters Local 85

TEAMSTERS LOCAL 85 Teamsters and Auto Truck Drivers Local 85, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and United California Express & Storage Co., Inc., d/b/a U.C. Moving Services and Teamsters and Auto Truck Drivers and Helpers of Alameda County, Local No. 70, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 20-CD-506 and 20-CD-507 May 17, 1978 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by United California Express & Storage Co., Inc., d/b/a U.C. Moving Services, herein called the Employer, alleging that Teamsters and Auto Truck Drivers Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called Respondent or Local 85, had violated Section 8(b)(4)(D) of the Act byengagingincertain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees of the Employer represented by Teamsters and Auto Truck Drivers and Helpers of Alameda County, Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Intervenor or Local 70. Pursuant to notice, a hearing was held before Hearing Officers Miguel A. Gonzales and Paula J. Paley on February I and 25, 1977, respectively. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses. and to adduce evidence bearing on the issues.' Thereafter, the Employer and Local 85 filed briefs. The Board has reviewed the rulings of the Hearing Officers made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding. the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- Subsequent to the close of the hearing in this proceeding the Board received Local 85's motion to submit a late exhibit. Although we do not consider this exhibit as particularly significant for purposes of resols ing the issues before us in this proceeding. the proffered exhibit does relate to new evidence which is not clearly irrelevant In view of the fact that the motion is unopposed. the motion is hereby granted and the affidavit is hereby re- ceived into evidence. ployer, a California corporation with its principal place of business in Oakland, California, is engaged in the business of providing commercial and residen- tial moving services. The Employer has annual gross revenues in excess of $500,000 and derives gross rev- enues in excess of $50,000annually from storage of goods received from directly outside the State of Cal- ifornia. The Employer also derives annual gross reve- nues in excess of $50,000 from shipment of goods from the State of California to customers located outside the State of California. The parties also stipu- lated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 11. THF I ABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 85 and Local 70 are labor organizations within the meaning of Section 2(5) of the Act. III TIIF DISPUTE A. Background and Facts of the Dispute The Employer is an Oakland-based moving com- pany which provides both residential and commer- cial moving services. Its employees have been in the past and continue to be represented by Local 70. The Employer is currently a party to a collective-bargain- ing agreement between the Bay Area Household Goods Movers Association and Teamsters Locals 70 and 315. This agreement was entered into after un- successful attempts to negotiate the Area-Wide Mas- ter Household Movers Agreement between certain employer associations representing Bay Area em- ployers 2 and Teamsters Locals 70, 85, 287, and 315 in 1976. The Employer is not a party to any collec- tive-bargaining agreement with Local 85. 3 The present controversy centers around Local 85's contention that a long-established practice of the moving industry in the Bay Area requires an employ- er who accepts a commercial job in the jurisdiction of a Teamsters local, other than the local with which it has a contract, to hire helpers from the hiring hall of the local in whose jurisdiction the work is to be performed. 4 ! The employers were represented hb the California Trucking Association on behalf of San Francisco Movers. Inc . and the Santa Clara County Mov- ing and Storage Association. and bs the San Francisco Employers Council on behalf of the Bas Area Household Goods Movers Association 3Although between 1971 and 1976 U C. Moving Services owned Merrill's Transfer & Storage Compan? which had a collective-bargaining agreement with Local 85 during this period. we do not find these facts relevant to this proceeding. 4According to Local 85. this practice requires an Oakland-based employ- (Continued) 236 NLRB No. 22 157 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 15, 1976, U.C. Moving Services em- ployees represented by Local 70 attempted a com- mercial moving job in San Francisco at the Bechtel Corporation. They were met by Local 85 pickets which were withdrawn only when the Employer hired Local 85 helpers for the job under protest. The Employer's employees initiated a grievance for lost wages which was eventually settled by the Employer. On January 4, 1977, U.C. Moving Services em- ployees attempted another commercial moving job in San Francisco, this time at the Bank of America. They were again met by Local 85 pickets. This cus- tomer did not permit the U.C. Moving Services em- ployees to perform the work because of the presence of these Local 85 pickets. Members of Local 70 again initiated grievances for lost wages which were subse- quently settled by the Employer. Charges were filed by the Employer following each picketing incident. The two cases were consolidated and hearings were held on February 11 and 25, 1977. Agents of Local 70 advised the job steward em- ployed at U.C. Moving Services that, while they would not oppose the filing of grievances regarding the disputed work, Local 70's official position was to support Local 85's claim to the work. At the hearing, Local 70 officially disclaimed its interest in the dis- puted work. However, throughout the hearing indi- vidual members of Local 70 employed by U.C. Mov- ing Services asserted claims to the disputed work. B. The Work in Dispute The work in dispute, as described in the amended notice of hearing, consists of all services in connec- tion with the moving and packaging of goods, equip- ment, and supplies at locations within the city and county of San Francisco and the county of San Ma- teo, including the packaging of office equipment for Bechtel Corporation at 141 Battery Street, and at the Bank of America facility at I South Van Ness Ave- nue, San Francisco, California. C. The Contentions of the Parties The Employer contends that Local 70's disclaimer is ineffective, and that a cognizable work assignment dispute exists within the meaning of Section 8(b)(4)(D). The Employer contends that, on the basis of its collective-bargaining agreement with Local 70, its preference, past practice, relative skills and train- er. such as IU.(C Movsing Services. to use L ocal 85 helpers when performing a commercial move in the city and counts of San Franciscol and the counit of San Mateo. the areas which comprise the geographical jurisdiction of Local 85 ing, efficiency and economy of operation, and poten- tial dislocation of its work force, the disputed work should be awarded to its employees. Respondent Local 85 and Intervenor Local 70 contend that, because of Local 70's official disclaim- er, no cognizable work assignment dispute exists. In the alternative, if a cognizable dispute is found, Lo- cal 85 claims that the work should be awarded to its members on the basis of industry practice, the agree- ment between itself and Local 70, and loss of employ- ment. D. Applicability of the Statute Section 10(k) of the Act directs the Board to hear and determine disputes which give rise to charges un- der Section 8(b)(4)(D) of the Act, but the Board's authority under this section is limited to the resolu- tion of actual disputes between competing groups of employees. Thus, it is well established that a cogniza- ble work assignment dispute no longer exists when one of the competing unions or parties effectively renounces its claim to the work in question.5 In the present case we find that Local 70 effectively re- nounced its claim to the disputed work and that this disclaimer was not vitiated by any equivocal conduct on the part of Local 70 or by the independent con- duct of individual members of Local 70. We note that Local 70 made its disclaimer known to its mem- bers and jointly appeared with Local 85 at the 10(k) hearing where it clearly and unequivocally repeated its disclaimer for the record. The fact that Local 70 routinely transmitted grievances filed by some of its members as a result of the incidents which precipi- tated these proceedings does not invalidate its dis- claimer. In these circumstances Local 70 was doing nothing more than attempting to fulfill its obligation as statutory bargaining representative of these indi- viduals. We note particularly that Local 70 made it known to grieving members that, although griev- ances were being transmitted, Local 70's official po- sition was to support Local 85's claim to the work and that Local 70 would not participate in the pre- sentation of the grievances at the formal grievance hearing.6 Similarly, Local 70's disclaimer was not in- validated by the fact that individual members of Lo- cal 70 initiated grievances and continued to claim the work in question following their representative's dis- N L R. vB. Plasterers' Local Union No. 79, Operative Plastererr' & Ce- oten!r asons' International Assn., 4 FL ( IO, et al. Texas Stare Tile & Ter- razzo (Co]. 404 U.S. 118. 134 135 (1971): Laborers' Internartional Union of NSorth America. Local 935, A.FL CIO (C & S Construction Co., Inc.), 206 NLRB 807 (1973).: Sheet Melal Workeri Local Union No 465 (Thorpe Insula- ti (on Coipmnl), 198 NLRB 1245 (1972). 'Contrast Brotherhood of Teanirters & Auto TrucA Drivers Local No 85, Interntational Brotherhood of Teamsnters. (hauffeurr, Warehousemen and tIrlprieri l America (Pa(lfi i MaUritime Associarion). 224 NLRB 801 (1976). 158 TEAMSTERS LOCAL 85 claimer. It is apparent that these individuals' contin- uing claims to the work were at least in part fueled by the Employer's precipitate settlement of their grievances which thereby obviated a formal test of Local 70's disclaimer. To find Local 70's disclaimer rendered ineffective solely on the basis of the inde- pendent activity of some individual members would undermine Local 70's position as statutory bargain- ing representative and would counter the well-estab- lished principle of exclusive representation,' particu- larly in the absence of convincing evidence that Local 70's disclaimer was equivocal. 8 Accordingly, in these circumstances we find that competing claims to the disputed work within the meaning of the Act no longer exist and we shall therefore quash the amended notice of hearing issued herein. ORDER It is hereby ordered that the amended notice hearing issued in this case be, and it hereby quashed. of Is, MEMBERS JENKINS and MURPHY, dissenting: Contrary to our colleagues in the majority, we would find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated, 7 Cf. Emporium Capwell Co. v. Western Addition Communi Os Organimation. 420 U.S. 50 (1975). Contrary to allegations in the dissent, our position herein is consistent with the well-established principle that a jurisdictional dispute subject to the Board's 10(k)jurisdiction is a dispute between two or more groups of employees asserting active rival claims to the same work. It is equally well established. however, that only a labor organization or its agent can violate Sec. 8(bX4)XD) and trigger our jurisdiction under Sec 10(k). Further, the exclusive representative of any of the rival groups of employees in a jurisdictional dispute is entitled to speak on behalf of its group. If the representative of a group of employees to which disputed work has been assigned disclaims the work, then the Board must decide, within the context of exclusive representation. whether subsequent acts by both the representative and the represented are consistent with the disclaimer See, e.g.. Brotherhood of Teamsters and Auto Truck Drisers, Local 70, Inernatllin- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helper of A mer- tca, Inc. (Hills Transportraion Co.), 136 NLRB 1086 (1962). We view Local No. 2 of Detroit, Bricklayers, Masons, and Plasterers Inter- national Union of America, AFL-CIO (Decora. Inc.). 152 Ni RB 278 (1965Lt and subsequent cases relying thereon, as factually distinguishable and not dispositive of the issue of the effectiveness of Local 70's disclaimer. In each of those cases there was evidence not only of continuing claims to disputed work by individual members of the ostensibly disclaiming union. but also of conduct by union agents who condoned or gave affirmative support to those claims although not required to do so in fulfillment of their statutory duties of representation. For example, at a meeting between union agents. at least one employee, and employer agents in Decora. the business agent for the disclaiming union local admitted pressure from his international and then "acquiesced" in the competing local's claim. At this same meeting, however. the agent made no apparent attempt to disavow continuing claims made in his presence by a member of his union. In addition, the disclaiming local did not appear and affirmatively state its disclaimer at the subsequent 10(kl and, since clearly there is no agreed-upon method for the voluntary adjustment of the present dispute, that this dispute is properly before the Board for determi- nation. Our decision in Local No. 2 of Detroit, Brick- lavers, Masons, and Plasterers International Union of America, AFL-CIO (Decora, Inc.), 152 NLRB 278 (1965)., and its progeny 9 require a finding that Local 70's disclaimer of the disputed work was vitiated by the continuing claims of its members and the equivo- cal conduct of its agents. It is apparent that Local 70 members have consistently asserted their claim to the disputed work as evidenced by the filing of griev- ances and their testimony at the 10(k) hearing. We also note that, while Local 70 took an "official" posi- tion consistent with Local 85's claim to the disputed work, it does not appear that representatives of Local 70 affirmatively sought to remove its members from the jobsite when the picketing incidents took place: nor did it take any steps designed to discourage Lo- cal 70 members from performing the work in ques- tion. It also appears that, while Local 70 announced its "official" position to the membership, on several occasions in "off the record" conversations its repre- sentatives made statements to at least one member supportive of his claim to the disputed work. Thus, in these circumstances we would find that the disclaim- er is ineffective and that it has not removed the pres- ent controversy from the purview of Section 10(k) of the Act on the basis of Decora. We do not view the minor factual distinctions between this case and the Decora case raised by our colleagues in the majority as requiring a different result. The majority, in relying on Local 70's disclaimer in the face of continuing claims to the work by the employees it represents, ignores the fact that jurisdic- tional disputes occur between groups of employees, not between local unions, and our awards are made to groups of employees, not to local unions. There is no question but that there is reasonable cause here to believe that a labor organization violated Section 8(b)(4)(D) of the Act. The sole issue now before us is whether that same labor organization thereafter ef- fectively withdrew its claim. On the facts before us, hearing despite its members' contiiuing claims ti the disputed work Ihe ahove facts or similar evidence of contradictors heh.lsior hs .ifenlis of the disclaiming union led to the Board's findings that the dlsclalnler in In)tirn and its progeny were clearly hollow gestures. Since the record herein does not reveal comparable circumstances. our dissenting colleagues' rehance on those cases is misplaced. 9 See, e g., Operatve Plastereri and (emen t il a oni ' International .4 .., sl. Ion of the I nilted Statre and (' nada, L.- al 80. 4 f'1 (C10 (Ja A F bert ond (ronpanl). 226 Nl.RB 242 (1 976l: nlted SteellorAer iof .4meril a, 4f1. (10. ct/ a[ ( ,otinental ( il, ( (ntipain In ). 202 Nl RB 652 I 1973i 159 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we find that its disclaimer was ineffective.'° The result reached by the majority promotes gameplaying, inhi- bits the establishment of industrial peace, and dero- T' Ihus. the majlrily's attempt to distinguish Decora on the basis that a factor in that case was the ambiguous behavior of agents of the disclaiming union must faill For the crux of the issue is whether two groups of emplovees claim the work in dispute. and. clearly, such is the case here. Cr. Local 153. Inrernaitnal Brotherhood of Electrical Workers, AFL-CIO (Commercial gates from proper discharge of our obligation to ad- minister the Act. Accordingly, we would proceed to determine the merits of the dispute. Electronics, Inc.),. 197 NLRB 934. 934-935 (1972): and Local 1291, Interna- tional Longshoremen's Association. AFL CIO1 (Pocahontas Steamship Compa- nl), 152 NLRB 676. 678-680 (1965). 160