Local 294,Teamsters

LOCAL 294, TEAMSTERS Local 294, International Brotherhood of Teamsters, "Chauffeurs, Warehousemen and Helpers of Ameri- ca and Montgomery ' Ward & Co., Inc. Case 3-CC-561 July 21, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 5, 1971, Trial- Examiner Thomas S. Wilson issued - his Decision in the above-entitled proceeding, finding that the Respondent Union had not engaged in the unfair labor practices alleged in the complaint and recommending that, the complaint be dismissed, as set forth in the attached Trial- Examin- er's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection,with this case to a three-member panel. - The Board- has reviewed the rulings of the Trial Examiner made at ` the hearing arid' finds that no prejudicial error ` was committed. _ The rulings are hereby, affirmed. The Board has considered the Trial Examiner's ,Decision,, the- exceptions and briefs, and the entire record in the case and hereby adopts the findings,' conclusions,, and, recommendations of the Trial-Examiner: -ORDER Pursuant to Section 10(c) ` of the National Labor Relations Act, as amended, the National Labor Relations "Board adopts as, its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. CHAIRMAN MILLER, concurring: I agree that the picketing by Leaseway mechanics of the Montgomery Ward lot where Leaseway trucks were, parked was primary in nature. I base this conclusion, however, not on, the fact that a mechanic was regularly scheduled to work there 1 to 6 hours a day, which, alone could not bring the 24-hour picketing- within 'the Moore Dry Dock standards,2 I base it on the undisputed evidence that some of the Leaseway trucks were driven from the Ward lot during the ' picketing by' Leaseway management officials. As the Court of Appeals for the District of 192 NLRB No. 26 155 Columbia Circuit has said, "when an employer .. . moves . . . a piece of equipment onto the property of someone else, for a normal business purpose, striking employees may peaceably picket that equipment even though none but supervisory employees are on or about it." 3 For this reason alone, I would dismiss the complaint. i Since the record is devoid of evidence showing anything other than an ordinary lessor-lessee relationship between Leaseway and 'Ward, 'the primay and secondary employers,_sespectively, -here ; we-disavow the Trial Examiner's findings of "practically a joint venture" arrangement between the said parties. 2 Painters District Council No. 38, Brotherhood of Painters, - Decorators and Paperhangers of America, AFL-CIO (Edgewood Contracting Company), 153 NLRB 797. 3 Seafarers International Union of North Ameriec, Atlantic & Gulf District, Harbor and Inland Waterways Division, AFL-CIO [Salt Dome Production Co.] v. N.LRB., 265 F.2d 585, 590. Accord New Power Wire and Electric Corp. and'P & L Services, Inc. v. N. L. R. B., 340 F.2d 71 (C.A. 2). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner: Upon a charge duly filed on September 16, 1970, and amended on September 18, 1970, by Montgomery Ward & Co., Inc., herein referred to as the Charging Party or as Ward, the General Counsel of the National Labor Relations Board, herein referred to as the General Counsel 1 and the Board, respectively, by the Regional Director for Region 3, Buffalo, New York, issued his complaint dated October 14, 1970, against Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Respondent or the Teamsters. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(bX4)(i)(ii)(B) and Section 2(6) and (7) of the Labor-Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying-the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held before me in Albany, New York, on December 1, 1970. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence materi- al and pertinent to the issues. At the conclusion ' of the hearing, oral argument was waived. Briefs were received from General Counsel and Respondent, on December 30, 1970. Upon the entire record in the case and from my observation of the witnesses, I make the following: I This term specifically includes the attorney appearing for the General Counsel at the hearing. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE CHARGING PARTY Montgomery Ward is, and has been at all times material herein, a corporation duly organized under , and existing by virtue of, the laws of the State- of New York. At all times material herein, Montgomery Ward has maintained an office, retail store, and place of business at 150 Broadway, in the city of Menands,,and the State of New York, herein called the Menands store, and various other, retail stores, places of business, warehouses, and other facilities in the States of !,New York, Maryland,) and various other States, and is, and has been at all times material herein, engaged at such retail stores and locations in the :sale and distribution of various retail products. The Respondent's Menands store, located at Menands , New York, is the only facility involved 'in-- this proceeding. During the ' past year, Montgomery Ward, in the course and conduct of its business - operations, sold and distributed products, the gross value of which exceeded $500,000. During the same' period, Montgomery Ward shipped and transported products valued in excess of $50,000 from its place of business in interstate commerce directly to States of the United States other than the State of New York. During the same period of time, Respondent received goods valued in excess of $50,000 transported to its place of business in interstate commerce directly from States of the United States other than the State of New York. Leaseway of Eastern New York, Inc., herein called Leaseway, is, and has been at ,all times material herein, a corporation duly organized under , and existing by.virtue of, the laws of the State of New York. At all times material herein, Leaseway has maintained its principal 'office and place of business at Menands, New York, and has been engaged at said location in the truck leasing business. During the past 12 months Leaseway, in the operation of ` its business,, purchased and received materials valued in excess of $50,000 directlyfrom outside the State of New York or. from other enterprises located within the State of New York which receives said goods and materials directly from outside the State of New York. Accordingly, as the above facts are admitted, in Respondent's - answer, .I find that Montgomery Ward and Leaseway each is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6), and(7), of the Act and is a person, within the meaning of Section .8(b)(4)(i)(ii)(B) of the Act. II. THE RESPONDENT Local 294, International Brotherhood' of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization admitting to membership employees of tease-way and isa labor organization within the meaning of ' Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts At the premises known as 150 Broadway, Menands, New York, the Charging Party, Montgomery Ward, herein Ward, operates a retail store together , with a,-,separate warehouse and distribution center from which Ward supplied other Ward retail outlets in eight,States.„ There are three entrances to the Ward p' rop'erty-at', 150 Broadway. The center entrance leads directly and exclu- sively to a large customer parking area . The two other entrances to the property lead to the warehouse and distribution center with its truck loading docks as well as to smaller customer parking areas. In connection with its warehouse and distribution center operations, Ward employs 5 short haul and 16 long haul drivers. The drivers operate some 23 tractors and 70 odd trailers. Each of these pieces ' of equipment is painted in"the usual Ward colors with the name "Montgomery Ward" prominently displayed thereon. Each piece "of equipment also has on it a small 2- by 3- inch, decal withthe; name "Leaseway" thereon denoting the owner of such equipment as required by law. The rubber mudguards also,have,the name "Leaseway". molded in them. When not in use all of this equipment is-parked at or near the leading docks of the warehouse and -distribution center. ` The Ward drivers are dispatched with the requisite equipment `'from the ware- house between 7 p.m. and4 am. -as°required. 'Ward employees load and unload the trailers. Ward leases this half million dollars worth'of automotive equipment from Leaseway of Eastern New York, Inc., which has its main office and garage facility locatedat 279 , Broadway in Menands. Under the terms of the lease of the above -equipment ,between Ward, and Leaseway, the maintenance and-repair of the aforementioned' automotive fleet "is- the responsibility of Leaseway..During, all times material herein this maintenance and repau `work, Leaseway, performed eitheratits own"facility nextto279BBr`oadway, if major, or at the distribution, center of 'War`at ` 150 Broadway, if' minor. The mechanics performing 'his,work in either case were-mechanics employed by Leaseway., Formerly the Leaseway mechanics used, to- go to 150 Broadway to do maintenance and make repairs on the equipment in response to telephone requests made by Ward's officials . About a month prior to the events in question here, or sometime,in August 1970,, Leaseway assigned one of its mechanics the re gular daily duty at about 3 p.m. to go to 150 Broadway' to.Ninspect the equipment there and to make the necessary maintenance and minor repairs `uponhat equipment. Usually ' 'this' assignment at 150 Broadway would be completed by^'the Leaseway mechanic in 3 to 4 hours = after a which the mechanic would return to the Leaseway facility. Teamsters Local 294 was, the certified and recognized, bargaining representative'for the Leaseway mechanics in collective bargaining with Leaseway. In August, ;,'and September, `Local 294 ` and Leaseway were engaged in negotiating a renewal agreement covering these Leaseway mechanics. On or about September 15 these negotiations' broke down. Because of this development the Leaseway mechancis went out on strike. Local,294placed apicket line, arount the Leaseway office and-facility . The mail-order locality of Ward was not picketed. ' 11 1 Local 294 placed pickets 24 hours per,day at,thertwo entrances at 150 Broadway which led to the warehouse. axed distr button 'center as well as to ' the ' smaller ' customer LOCAL 294, TEAMSTERS 157 parking lots. When the,picketing, began there were 13 Leaseway tractors and-between 23 and 40 trailers parked at the distribution center. The entrance to 150 Broadway leading to the large customers' parking lot was not picketed. ,The Ward -drivers -were also represented by Teamsters Local 294. Although Local 294 had no dispute with Ward' the Ward drivers voted to honor the picket line of Local 294 and so refused to cross the picket line. Hence Ward had no, drivers to be dispatched so that the leased automotive equipment remained parked and unmoving at the Ward warehouse loading docks during the strike. ,On„Septembery20 supervisory officials of Ward and of Leaseway drove all the tractors from the Ward warehouse, to. the Leaseway facility thus ; leaving only the trailers parked' at the warehouse without locomotive power. With the, tractors returned to the Leaseway premises, the picketing at 1,50Broadway ceased. On the evening of September 20 Leaseway and Local 294 agreed upon acollective-bargaining agreement covering the Leaseway mechanics. There has been no picketing at Leaseway or Ward since that time. It was stipulated that the picket signs used by Local 294 all read as follows: "Mechanics of Leaseway of Eastern New York, Inc. on Strike. Teamster Local 294." B. Conclusions The gravamen of the complaint herein is that Respondent Teamsters, representing the mechanics of Leaseway, engaged in an illegal secondary boycott by picketing at Ward's with the object of forcing "neutral" Ward to cease doing business with "primary" Leaseway during a labor dispute the Teamsters had with Leaseway. Leaseway is engaged in the business of leasing automo- tive equipment to third persons, in this instance to Ward. Under the terms of the lease with Ward or, at least, the practice under that lease, Leaseway repaired and main- tained the leased property and permitted it to be parked or housed on Ward property when not in use by Ward. Leaseway performed its maintenance obligation under the lease on the leased equipment either at its own facility or on the Ward property as was most convenient. Originally Leaseway mechanics did maintenance work on the equipment at Ward's in response to telephone requests by Ward but, prior to the beginning of the picketing, Leaseway, obviously with Ward's consent, had daily assigned one mechanic to do such maintenance work to the equipment while it was parked on Ward's property from 3 p.m. until that maintenance had been completed, usually by 7 p.m. Although the equipment so leased bore Ward's name and colors, it also bore markings denoting Leaseway's ownership thereof in the form of a small 2- by 3- inch decal together with the rubber mudguards with the Leaseway name molded thereon. Thus it is clear that Leaseway was carrying on its regular, normal, and routine equipment leasing business with Ward 24 hours per day on and off Ward's property. Even though the Leaseway mechanic may have been doing his regularly scheduled maintenance work on the leased equipment generally only from 3 to 7 p.m. daily, there is no evidence in this record, especially in the absence of the lease agreement itself, that Leaseway was restricted to that 3 to 7 p.m. period for the performance of the required maintenance work or that Ward could not have required maintenance work in an emergency at any time of the day or night on-or off Ward's property. Even General Counsel's brief recognizes that Leaseway and' Ward were performing their mutual business at a "common situs," to wit, Ward's store and' distribution center. But in his brief General Counsel maintains ' that Respondent violated the rules of common situs picketing as explicated in the Moore Dry Dock case, 92 NLRB 547,' by reason of'the fact that Respondent maintained a 24-hour- per-day picket line at two'of the three entrances to Ward's property- where, admittedly, a part at least of Leaseway's leased equipment was parked and consequently Respon- dent picketed Ward's property at times when no Leaseway mechanics, were doing maintenance work to the leased equipment on the Ward property. In fact the record indicates that during the 4 days of picketing at Ward's, no Leaseway mechanic did any maintenance work while they were on strike against Leaseway. Thus the'Leaseway strike accounts for the fact that no Leaseway employee did any work on the leased property on Ward's property during the period of the strike. Nor did the leased equipment move during that period on or from the Ward's property because the Ward drivers, members of the same Teamsters Local as the Leaseway mechanics, decided to honor the Respondent picket line at Ward's. This claim that Respondent picketed Ward at a time when no Leaseway employees were on the property is the only violation of the recognized common situs picketing rules General Counsel could discover. It is the gravamen of General Counsel's case. In the light of the above facts, this contention is a weak, if not broken, reed upon which to claim a violation of Section 8(b)(4)(i)(iiXB) of the Act. In the estimation of this Trial Examiner, Respondent here was engaged in direct, primary picketing of the struck employer's business of leasing automotive equipment to Ward and maintaining that equipment on the lessee's property as required or permitted by the lease agreement between Leaseway and Ward. This leasing business was a 24-hour-per-day business and, so far as this record shows, maintenance could be required also on a 24-hour-per-day basis at the Ward property. Respondent and the mechanics had the right to picket their employer's business wherever it was being conducted. That this happened to be a 24-hour-per-day business conducted at least in substantial part on Ward's property is unfortunate for Ward. Ward got itself embroiled here either by the terms of the lease with Leaseway or the practice it permitted thereunder. The practice under the Ward- Leaseway agreement created practically a joint venture and thus more than just an ordinary common situs situation. Ward could have protected itself from such primary picketing by its lease agreement with Leaseway. It failed to do so. This often happens in these close corporate business associations where it becomes difficult to distinguish the employees of one corporate employer from those of the associated corporate employer. Even if this be considered the ordinary common situs situation, I would have to recommend the dismissal of the complaint here for the reason that Respondent not only 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abided -by the judicially accepted rules of common situs picketing , but did its best to protect Ward from the corporate entanglement which Ward and Leaseway had created. Not only did the picket signs clearly identify Leaseway • as the only employer being picketed, but Respondent ,even kept Ward's customer entrance free of the picket , because only the two entrances used by the Leaseway equipment were picketed . The pickets were as close to the equipment involved as was possible without Ward's permission to picket at the loading dock . Further- more the picket lasted only during the period there was a possibility of moving the equipment because the picket was removed as soon as the, tractors were returned to the Leaseway facility. The final requirement has been discussed herein before and will not be repeated here. The result is that, if Ward became embroiled in the dispute between Leaseway and Respondent , it became so enmeshed by reason of its business arrangement, and practice thereunder, with Leaseway. Ward had only itself and its lease arrangement to blame for whatever embarrass- ment it suffered in'the labor dispute in which it was not a primary disputant. This lease and the practice thereunder created a situation akin to estoppel so far as Ward was concerned. This is even a stronger case for dismissal than United ;Steelworkers of - America ,.AFL-CIO (Auburndale Freezer-Corp.). 177 NLRB"No: 108, reversed 434 F.2d 1219 (C.A. 5), December 3,1970. - , 11 I Accordingly I must, and hereby do, find , that Respon- dent's picketing at Ward's entrances was primary picketing and, in addition, was conducted in accord with all the rules of common.situs picketing and, therefore, was no violation of Section 8(bX4Xi)(iiXB) of the Act. CONCLUSIONS OF LAW 1. Local 294, International Brotherhood of ' Teamsters, Chauffeurs, Warehousemen and Helpers of America,,is a labor organization within the meaning of Section 2(5) of the Act. 2. Leaseway of Eastern New York, Inc., and Montgom- ery Ward & Co., Inc., are employers engaged in commerce within the meaning of Section=2(6) and (7),of the Act. 3. Respondent has not engaged in any of the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Accordingly I hereby order this case dismissed in toto.