Teamsters Local Union No. 688

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters Local Union No. 688, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Fair Mercantile Company, Inc. Case 14-CC-906 June 12, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 25, 1974, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record 1 and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order for the reasons set forth herein. Fair Mercantile, a retailer of furniture, appliances, carpeting, and related products, had, until March 1, 1970, employed drivers and helpers to deliver merchandise to its local customers. On that date, Fair entered into a contract with Sweeting Express Lines whereby the latter undertook to perform the aforementioned delivery services with employees formerly employed by Fair. Under the arrangement, Sweeting assumed Fair's collective-bargaining agree- ment with the Union and on its expiration negotiated a new agreement which terminated on November 1, 1973. Following expiration of this agreement the Union picketed Fair's warehouse facility, where the trucks owned by Fair and used by Sweeting are usually kept, with signs stating "Employees of Sweeting Express Lines Inc. working at this location on strike...." The Union thereafter followed Fair's trucks and picketed with similar signs when other drivers, who had meanwhile contracted with Fair to perform these delivery services, attempted to deliver merchandise to the homes of Fair's customers. All parties concede that the legality of this picketing, which is here in issue, depends upon whether Fair is a neutral which the Union seeks to enmesh in its dispute with Sweeting or, on the other hand, whether Fair and Sweeting are joint employers against whom The Charging Party's request for oral argument is hereby denied, as the record and the exceptions in our view adequately present the issues and positions of the parties 2 Although it is not specifically recited in the aforementioned agreement, the Union has taken primary action for legitimate objectives. On the facts and for the reasons set forth below, we find, in agreement with the Administrative Law Judge, that Fair and Sweeting are joint employers and that the picketing here in question did not violate Section 8(b)(4)(B) of the Act. As previously stated, Fair contracted out its delivery operations to Sweeting on March 1, 1970. On that occasion, the parties entered into a written agreement which, inter alia, recited that Sweeting was to operate as an independent contractor with "full control over the direction of his employees." By its terms, Sweeting agreed to purchase and maintain insurance protection against liability under ,any Workmen's Compensation Act or any statute or law for personal injuries sustained by his employees and for injuries to, or deaths sustained by, any person or persons other than his employees. For its part, Fair agreed to own, maintain, and garage the trucks used by Sweeting in performing delivery services for Fair, to provide the necessary personal liability and property damage insurance on the trucks involved, and to pay Sweeting for these services on a piece rate basis, depending upon the nature of the merchandise delivered. This 1-year contract was automatically renewable for similar, successive periods of time.2 Notwithstanding, few changes in the delivery operation seem to have occurred following transfer of these operations to Sweeting. As was formerly done, employees would report to the Fair warehouse facility, where the trucks were based, to obtain their "tickets," load the trucks, and perform deliveries according to prearranged routes. Aubrey Miller, Fair's warehouse shipping superintendent, credibly testified that drivers were assigned geographical areas and trucks based on "historical considerations" and seniority. Miller himself tentatively drew up the route to be followed by the drivers in making their deliveries, based on geographical considerations and customer convenience. However, Miller had the authority to, and did occasionally, assign employees to work outside their regular areas. The drivers, however, had the right to adjust the order of delivery, so long as they informed Miller of any changes. Normally six employees were used in this operation, three drivers and three helpers: a driver and a helper assigned to each of Fair's trucks. When sales volume, and consequent delivery schedules, did not warrant the use of all six regular employees, Miller would designate those individuals to be placed in temporary layoff status. These layoffs were based on seniority Fair concedes that it assumed full responsibility for damage and loss of merchandise arising in the course of delivery by Sweetmg's employees and furnished, without cost to Sweettng , the gasoline required for the operation of its trucks. 211 NLRB No. 71 TEAMSTERS LOCAL UNION NO. 688 status. On other occasions, when the delivery demand required- the use of additional trucks and employees, Mill -would obtain necessary help by calling the Union's hiring hall, which would then dispatch the needed employees to the Fair premises. Employees would report to Miller when they intended to absent themselves from work, either because of illness or for other reasons. Miller, in turn, would obtain temporary replacements for them. Further, drivers would report truck breakdowns to Miller and take action in accordance with his instructions. Occasionally, Miller discussed working problems and complaints with the Sweeting employ- ees. On one occasion he undertook surveillance of a Sweeting driver who was suspected of dallying on his route, and on another, informed Warren Sweeting when a truckdriver was operating on a suspended license, but as to these instances, Miller disclaimed any authority to discipline or otherwise to remedy the problem. At the hearing, Miller asserted that he was told by Fair management that `-`I shouldn't do this for him [Warren Sweeting] I mean it was his obligation but if I wanted to do him a favor-but I shouldn't do it." Miller stated, nevertheless, that at no time during the entire period did. Fair management forbid his performing the aforementioned functions. Indeed, Miller states that he did so in Fair's own interest as Sweeting visited the Fair facility infrequently and was otherwise unavailable, since Sweeting himself drove a truck in connection with other unrelated delivery operations. In this connection, the testimony reveals that Sweeting appeared at the Fair facility once or twice a week to collect employees' timecards and to distribute paychecks to the drivers and helpers. Further, although Sweeting was nominally responsible for the payment of the drivers and helpers, Fair, on several occasions, cashed paychecks for the Sweeting employees after they were dishon- ored by the bank for insufficient funds. All the foregoing amply demonstrates that, not- withstanding the intended relationship manifested by the written agreement between Fair and Sweeting, in practice, Fair's management assumed in its own interest substantial employer functions and shared or codetermined with Sweeting matters governing the essential terms and conditions of employment of the employees herein. For these reasons we conclude that Fair and Sweeting are the joint employers of these employees and accordingly that their bargain- ing representative did not violate Section 8(b)(4)(B) of the Act by picketing the Fair facility. A fortiori, the ambulatory picketing which followed likewise did not run afoul of the Act. ORDER 497 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: The original charge was filed by Fair Mercantile Company, Inc., herein referred to as Fair, on November 14, 1973, and was served on the Respondent, Teamsters Local Union No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as Local 688, by registered mail on or about the same date. A complaint and notice of hearing was issued on December 6, 1973. The complaint charged that the Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, herein referred to as the Act. The Respondent filed a timely answer denying that it had engaged in the unfair labor practices alleged. The case came on for trial on January 7, 1974, at St. Louis, Missouri. Each party was afforded a full opportuni- ty to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. FINDINGS OF FACT,1 CONCLUSIONS, AND REASONS THEREFOR I. THE BUSINESS OF FAIR MERCANTILE COMPANY, INC., AND SWEETING EXPRESS LINES, INC. Fair 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 Missouri. At all times material herein, Fair has maintained its principal office and place of business at 5257 Shaw Avenue in the City of St. Louis and State of Missouri, herein called Fair's store. Fair is, and has been at all times material herein, engaged in the retail sale and distribution of furniture, appliances, carpeting, and other related prod- ucts. During the year ending December 31, 1972, which period is representative of its operations during all times material hereto, Fair, in the course and conduct of its retail business operations, derived gross revenues in excess of $500,000, and purchased and caused to be transported and delivered at its warehouse and store furniture, appliances, carpeting, and other goods and materials valued in excess of $50,000, The facts found herein are based on the record as a whole and on the observation of the witnesses 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of which goods and materials valued in excess of $50,000 were transported and delivered to its warehouse and store in St. Louis, Missouri, directly from points located outside the State of Missouri. At all times material herein, Sweeting Express Lines, Inc., herein called Sweeting, has been engaged in business as an intrastate trucking establishment and has had a contract for the delivery of Fair's merchandise in the performance of which Sweeting receives in excess of $50,000 from Fair. Fair and Sweeting, each is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a person engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4XB) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Local 688 is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Pertinent Facts The parties stipulated as follows: 1. Fair Mercantile Company, Inc. operates two facilities in the St. Louis, Missouri, area, consisting of a storage warehouse located at 5256 Northrup and a store and delivery warehouse located at 5257 Shaw Avenue, St. Louis, Missouri, both facilities located approximately one-eighth of a mile apart. 2. Fair Mercantile Company, Inc. . . . for many years prior to around March 1, 1970, employed its own drivers and helpers to perform its delivery service. Since around 1951 until the present time drivers and helpers who deliver Fair's merchandise were represent- ed by various local unions of the International Brotherhood of Teamsters including Teamsters Local Union No. 688 who represented drivers and helpers who deliver Fair's merchandise from around July 1, 1965, until the present. Around March 1, 1970, Fair by written agreement contracted its delivery services to Sweeting Express Lines, Inc... . 3. The trucks utilized in the delivery services performed by Sweeting have at all times been owned and maintained by Fair. The trucks have at all times material herein carried Fair's name and not Sweeting's on them. 4. Fair's trucks are situated at Fair's store and delivery warehouse facility on the west side of the building which houses Fair's delivery warehouse, and some of Fair's trucks are situated at Fair's storage warehouse. Fair's trucks are interchanged back and forth between the facilities. Fair's trucks at the store and delivery warehouse facility are usually located near the loading doors. 5. Picketing has been conducted since November 6, 1973, in front of the loading doors at Fair's store and delivery warehouse facility. . . . Aubrey Miller is a warehouse supervisor employed by Fair. Since around March 1970 the drivers and helpers employed by Sweeting and performing delivery service for Fair have had their wages paid by Sweeting. The March 1, 1970, agreement between Fair and Sweeting provided that both parties would recognize the existing labor agreement between Fair and Local 688 and "will comply with its provisions with particular reference to Article VI, Section 4, pertaining to Transfers of Work." Article VI provided that Fair was not prevented "from selling, leasing, contracting or making any other transfer of all or part of the bargaining work to any other firm or corporation" subject to certain protective features for Fair's employees. Sweeting took over the Local 688 agreement and thereafter upon its expiration on October 31, 1970, negotiated a new agreement which by its terms expired November 1, 1973. Fair was not a party to this contract nor was it asked to participate in negotiations by Loca1688. Under the agreement between Sweeting and Fair, it was agreed that Sweeting should operate as an independent contractor with full control over the direction of employ- ees. Sweeting agreed to furnish insurance policies protect- ing the legal liability of Sweeting under any Workmen's Compensation Act and the legal liability of Sweeting for injuries to or death sustained by persons other than Sweeting's employees. Fair agreed that it "will own, maintain, and garage trucks used in this operation , and will provide necessary personal liability and property damage insurance coverage on trucks." Pursuant to this agreement, Sweeting used Fair's trucks on which the name of Fair appeared and Fair provided gas, oil , maintenance, and insurance. Fair paid Sweeting "by the piece" for the delivery of its merchandise. Sweeting used on the average two and a half trucks a day for delivery purposes and employed between four and six truckdrivers and helpers, herein sometimes referred to as delivery employees. There were six "regular men" on the seniority roster which was maintained only for delivery employees who delivered Fair's merchandise. Fair assumed "the responsibility of damages and losses on merchandise." In addition to the delivery work performed for Fair, Sweeting also hauled flowers and carpets . There was no evidence that Fair merchandise employees were engaged in this work; nor were Fair's trucks used for this purpose. After Sweeting assumed the contract in March 1970, it paid the delivery employees wages and otherwise con- formed to the provisions of the contract which continued during the term of the subsequent contract . The delivery employees did not enjoy the same benefits which were afforded Fair store employees who were governed by a contract with the Retail Workers. The delivery employees were not carried on Fair's payroll, but utilized Fair's timecard rack and timeclock. Aubrey A. Miller, warehouse shipping foreman superin- tendent, had the responsibility "to see that the delivery orders [were] brought in to the loading area for the next day delivery." Miller testified, "I take all of the orders that are scheduled for the next day and I figure out how many loads, truckloads, are needed to deliver that much furniture for the following day." In the exercise of this function, TEAMSTERS LOCAL UNION NO. 688 Miller sorted the tickets (orders), assigning them to zones for delivery.2 The tickets were arranged in a manner so that the routing would accommodate the demands of the customer as to the time of delivery and the area to be serviced by the driver.3 Miller tried to equalize the loads. Thereafter the tickets were given to a checker who prepared a log sheet or trip sheet on which appeared the ticket numbers and the names and addresses of the persons to whom merchandise was to be delivered. A copy of the log was retained in the office and a copy was given to the driver. The driver signed the log. The driver and helper loaded the trucks from merchan- dise which was moved to the loading zone or dock the previous day by Fair employees. About 1-1/2 hours was consumed in loading the trucks. Merchandise was checked by the checker. Miller informed the delivery employees if there was a change in zones which they were to service. Occasionally (about once a week) he discussed working problems and complaints with these employees? Miller also discussed with the drivers facts related to damaged merchandise delivered. Customers' complaints were taken up with Sweeting. When Sweeting's checks were dishonored at the bank, Fair "as a favor" cashed the delivery employees' checks for them. Miller issued gasoline purchase tickets to drivers when they were ready to commence their day's deliveries. If the drivers were required to purchase gasoline or other services for the trucks while on route, they were reimbursed by Fair. In case of a truck breakdown, drivers contacted Miller who gave them instructions as to how the matter should be handled. After Miller had routed the deliveries for the next day and had ascertained the number of trucks which would be needed for delivery, he informed the delivery employees if any of them were not needed by marking the timecards of those holding the lowest seniority, "Not to report the following day." If Miller needed additional employees, he phoned the laid-off employees on the seniority list, and if he needed more employees or these were not available he phoned the union hiring hall. New employees were furnished blank timecards on which they entered their names and addresses, and W-2 forms. In case of illness or absence, delivery employees notified Miller who arranged for replacements.5 If the absence was for more than 1 day Miller told the employee to notify Sweeting. Miller had no authority to excuse employee 2 The zones were , north, south county, north county, and central. 3 A driver generally serviced the same area or zone . If a driver changed the routing, he informed Miller of the change so that he might advise an inquiring customer. * Miller cited an example: Well, one of the men, maybe a regular driver would be sick and a replacement man would come out and so he would take the place of the man who was off and that would just be sort of a routine thing and he drives this truck this day because this fellow is off sick and the other crews are there together like, they always are, so maybe the helper on that particular truck might not like this fellow that he had come from the hall or couldn't get along with him so he would say could we trade off with so and so and so and so and switch the men around . . . . Well, they would ask Massaro about it , he was the steward, as to what to do, he would then come to me and discuss it. Usually they would go to him first being as he was the steward and so I would say, "Tom , what do you think, I mean, you guys can work it out, do you want to go there 499 absence. On one occasion, Sweeting complained to Fair that an employee, Bruerer, was making more overtime than the other employees. Thereafter, Miller saw Bruerer's truck parked near a tavern. Miller was instructed by Albert Paull, president of Fair, to "see how long the truck stayed there." A report was made to Sweeting. On another occasion, Paull reported to Sweeting that driver Temme was driving without a chauffeur's license. Temme was discharged. Miller was never told by Fair's management not to perform the above functions for Sweeting, although he was told that Sweeting "should be taking care of these things." Miller said he performed these functions as a convenience to himself and as a favor to Sweeting.6 He had experienced difficulty locating Sweeting. Sweeting collected the timecards and issued wage payments to the delivery employees by stapling their payroll checks to their timecards. "[S]ometimes once or twice a week," Sweeting came in to the Fair store for such purposes. After the contract expired between Local 688 and Sweeting in November 1973, Local 688 placed a picket line at the Fair store premises. The picket signs bore the legend "Employees of Sweeting Express Lines, Inc., working at this location on Strike-Teamsters Local Union 688 affiliated with I.B. of T.C.W. & H of A." During the period of negotiations, Local 688 proposed a settlement of the dispute which was not acceptable to Sweeting. Sweeting brought to Fair's attention that it could not settle the contract until it knew what rates Fair would pay. Fair did not discuss rates with Sweeting or the terms of Local 688's proposed contract. After the picket line appeared, Fair asked Sweeting "if he could take the trucks out." Sweeting said that "he couldn't take them out." Fair then hired Fritz, Bailey, and Wills on November 12, 1973, to make its deliveries. They agreed to deliver Fair's merchandise by charging "so much per piece." For a few weeks Fritz, Bailey, and Wills furnished the trucks, two of which were rentals . Thereafter, Fair supplied its own trucks on the same basis as it had supplied them to Sweeting. Local 688 followed Fair's trucks and picketed at the point of delivery.? B. Conclusions and Reasons Therefor While the General Counsel and the Charging Party filed excellent and well-considered briefs, neither referred to or and this guy go there, I don't care what you do," two men on a truck, you know. Then if they weren't happy there was nothing I could do, I would just tell them they would have to call Sweeting and straighten it out. 5 Miller testified that his only connection with this situation was "to hire a replacement for that man , how to get a man to take his place for the day." 8 Miller testified: ". . . I believe I do them more for myself that I do for Mr. Sweeting, I do it as a favor, he asks me to do it in his behalf." 7 The Respondent admitted the following allegations in the complaint: Commencing on or about November 12, 1973 and continuing until around December 5, 1973, Respondent on numerous occasions followed and subsequently picketed Fair's subcontractors Bailey, Wills and Fritz, with picket signs reading in substance the same as those hereinabove described in subparagraph A, [as above quoted] as the subcontractors attempted to deliver Fair's merchandise to the homes of Fair's customers. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distinguished the case of Highway Truck Drivers and Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Sterling Wire Products Company), 137 NLRB 1330, relied upon by the Respondent, from the case which is before me. I have been unable to distinguish the case. Substantially the same factors which persuaded the Board to dismiss the com- plaint in the Highway Truck Drivers and Helpers, Local 107 case, supra, are present in the instant case. Thus, I am bound to find, as did the Board in the Highway Truck Drivers and Helpers, Local 107 case, supra, that Sweeting was not the "sole primary employer involved in the dispute" and that the action of Local 688 "in picketing [Fair] was primary activity in support of an effort to obtain 8 Sec. 2 of the Act provides: The term "employer" includes any person acting as an agent of an employer, directly or indirectly. Fair's retention of control and its exercise of control over the delivery employees brought it within the definition of an "employer." 9 In the event no exceptions are filed as provided by Sec 102 .46 of the reemployment for the drivers who were employees of [Fair]." 8 Having so found, it follows that the ambulatory picketing by Local 688 was also lawful . Brewery Workers Union No. 8, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO (Bert P. Williams, Inc.), 148 NLRB 728. Bailey, Wills, and Fritz became allies and as nonneutrals rendered themselves subject to Local 688's picketing. Accordingly, it is recommended that the Board issue the following: ORDERS It is hereby ordered that the complaint be, and it hereby is, dismissed in its entirety. Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes.